1813597 (Refugee)

1813597 (Refugee) [2023] AATA 352 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)
CASE NUMBER:  1813597
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE:4 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 January 2023 at 11:39am
CATCHWORDS
REFUGEE – protection visa – Vietnam – decision on the papers – woman – single mother – former divorcee – presently unemployed – in need of medical and/or psychological treatment – failed asylum seeker – serious, ongoing and irreversible harm and continuing hardship – Australian citizen partner and child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 9 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas on 31 January 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the primary applicant is a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Vietnam, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act, and therefore was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 10 May 2018. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants’ protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicants were represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well‑founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well‑founded fear’ in the refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Vietnam they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The primary applicant, when applying for the visa, stated that she left Vietnam as she had ‘got married in Australia’ and her ‘child is still young’. She further stated that she did not move or try to move to another part of Vietnam to seek safety and, as to her reasons for not doing so, stated that: ‘I don’t want’. As to her fears in relation to returning to Vietnam, she claimed that:
·I will suffer from depression.
Further, in response to the question in the visa application as to how she thinks she would be harmed or mistreated if she returned to Vietnam, the applicant’s response was:
·No
In response to the question as to whether the authorities in Vietnam would protect the applicant if she returned to Vietnam, her response was:
·Vietnam authority does not protect well.
Department interview
The applicants were not offered an interview by the Department.
Invitation to attend hearing
On 25 November 2022, the Tribunal wrote to the applicants via their agent, Mr Michael Cai of Jack Ta & Associates, the authorised recipient of all written correspondence as nominated in their review application. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 15 December 2022. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 8 December 2022, the applicants replied to the Tribunal indicating that they would not be participating in the scheduled hearing and that they consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear. The Response to hearing form also referred to their representative’s submission of 8 December 2022.
This matter has therefore been determined on the evidence before the Tribunal.
Submission to the Tribunal of 8 December 2022
The applicant’s submission of 8 December 2022 included written submissions from their representative and the following attachments:
i. Documents relating to the applicant’s and [Mr A]’s common child, [Child B];
ii. A psychological assessment report completed by [Dr C];
iii. A Form 888 statutory declaration completed by [Mr D];
iv. Documents and statements relating to the applicant’s and [Mr A]’s joint mortgage and home loan;
v. Statements from the applicant’s and [Mr A]’s joint bank account;
vi. Council rates notices for the applicant’s and [Mr A]’s shared home;
vii.Electricity bills for the applicant’s and [Mr A]’s shared home;
viii. Water bills for the applicant’s and [Mr A]’s shared home;
ix. Documents relating to the applicant’s and [Mr A]’s family health insurance;
x. The applicant’s and [Mr A]’s home insurance policy;
xi. Documents relating to the applicant’s and [Mr A]’s car insurance and registrations;
xii. Documents from Centrelink relating to [Mr A] and the children;
xiii. Documents relating to the secondary applicant;
xiv. A sample of photographs of the applicant, [Mr A] and their family in various social settings; and
xv. Miscellaneous documents relating to the relationship between the applicant and [Mr A].
In their written submission they state at [4] and [5] as to the ‘Delegate’s Decision’ that:
The Delegate noted in the Decision Record that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in section 36(2) of the Act.
The Applicant instructs that she accepts the Delegate’s assessment and waives her entitlements to a hearing—seeking the Tribunal’s decision to affirm the application under review. The Applicant further requests the Senior Member consider referring and recommending her matter to the Minister for intervention in light of her circumstances and relationship with her new partner, [Mr A], and their common child, [Child B] (“[Child B]”).
As to the primary applicant’s background they state the following at [8] and [9]:
The Applicant instructs that she has married [Mr A] since November 2016, and they have had a common child, [Child B], since [date]. In the years since this time, the Applicant and [Mr A] have shared in their household, and most importantly, taken significant roles in [Child B]’s upbringing and growth.
Both the Applicant and [Mr A] have shared in the roles of primary carers for [Child B] from her infancy to her present age as she continues to grow and develop as a child. In particular, the Applicant provides key care and support for [Child B] as she enters this crucial stage in her growth and development—ensuring that [Child B] has the appropriate love and support only the Applicant can provide as her mother.
At [12] to [16] they further submit the following:
We respectfully submit that, although the Applicant does not meet the criteria set out in the relevant legislation relevant to the visa applied for, she has considerable and compelling reasons to remain in Australia. We understand and acknowledge accordingly that, in any circumstance, the Presiding Member must make a decision to affirm the Department’s decision based on the information and facts of this matter.
In light of this, the Applicant and [Mr A] have provided updated instructions to request that the Senior Member make a decision on the papers—without the need to attend the scheduled hearing—to affirm the Department’s decision. We note that this is reflected in the attached updated Response to hearing invitation completed and signed on the Applicant’s behalf, which indicates that the Applicant will not take part in the scheduled hearing.
However, per the Applicant and [Mr A]’s additional instructions, considering their current circumstances, we do make a further request that the Senior Member consider making a referral or recommendation for ministerial intervention on this matter.
On the basis of the evidence and information provided, including that the Applicant and [Mr A] have a common child and have built up a life in Australia together, as well as the breadth of evidence provided demonstrating that the Applicant and [Mr A] are raising [Child B] together in Australia.
Given [Child B]’s incredibly young age, we respectfully submit that it will be severely difficult and unsettling for both [Mr A] and [Child B] if they are separated from the Applicant if she returns to Vietnam, or if they are required to relocate to Vietnam with her.
The submission requests that the Tribunal refer this matter for Ministerial intervention and in that regard states at [17] to [25] that:
The Applicant requests that the Member make a referral or recommendation for Ministerial Intervention on this matter. We respectfully submit that the Applicant’s circumstances do present compelling and compassionate grounds to remain in Australia that would, and ought to be, invoked in a request for Ministerial Intervention for consideration and intervention.
Firstly, we submit that it is reasonable to expect a child who is still at a very young age, being only [age] years old, to require the constant care and support of her parents. As such, we respectfully submit that at such a crucial age in her early childhood development and growth, [Child B] surely needs the Applicant’s care and support in Australia.
The Applicant’s relationship with her vulnerable child is crucial, and her presence in [Child B]’s life ensures a secure, happy and warm loving family, and this will significantly shape every aspect of the child’s development, including her ongoing social, emotional, physical, and cognitive wellbeing. [Child B] has never been separated from her mother for more than a few hours in a day.
The Applicant and [Mr A] fear that the possibility of the child being separated from either her mother or father would, therefore, lead to irreversible trauma on the part of the Australian child. We submit that separating parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for a child.
Moreover, the Applicant and [Mr A] instruct that her departure from Australia, including the associated separation from [Mr A] and [Child B], would cause severe hardship to their family. Alternatively, [Child B] would be forced to depart Australia for Vietnam to remain with her mother, which would the deny her the full access to the benefits and quality of life she is due as an Australian child.
Although we acknowledge that it may be common for other families to be in similar situations face temporary hardship, each case should ought to be considered and assessed on its own merits and within its own context.
Importantly, we note that the Guidelines set out that the Minister would be informed on relevant issues including the following:
•Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interest of the child, which must be treated as a primary consideration, but can be balanced against other primary considerations; and
•Circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme.
We respectfully submit that the Applicant has made available to the Tribunal an extensive body of evidence of her relationship with [Mr A]—including evidence that they share their finances, address and household, and responsibility for the care of [Child B]. The nature of this evidence and their collective effect demonstrate that the Applicant is indeed in a committed relationship with [Mr A].
We request that the Senior Member consider this evidence that has been provided significantly and with appropriate weight in determining the broader matter at hand, including as context for the compelling circumstances of the Applicant and her family.
In the psychological report of 4 February 2020 requested by the primary applicant’s representative and attached to the submission, the report writer, [Dr C], clinical and counselling psychologist, opines after conducting four teleconferenced counselling sessions that the primary applicant fits the criteria for diagnosis of an adjustment disorder with mixed anxiety and depressed mood; see [22] of the report. The writer also at [21] of her report notes that:
[The applicant] reported that she was depressed as a result of the betrayal she experienced from her previous two marriages, however she never sought any formal psychiatric or psychological treatment.
As to the diagnosis advanced it is reported at [22] that:
… [The applicant] presented with very low affect during her assessment sessions and was tearful talking about the possible separation from [Mr A] and their daughter, [Child B]. [The applicant] stated that she suffers from a depressed moos most of the day, nearly every day. Every time she thinks about the possibility of her and her son being sent back to Vietnam she would become very upset and distressed. She worries about how [Mr A] and [Child B] would be able to cope if their family was separated for any extended period of time …
At [24] it is reported that:
[The applicant] is a woman who has been through a lot in her life especially in relation to her pervious failed marriages. The first marriage ended due to her ex-husband’s multiple infidelities which left her feeling helpless and hopeless as she had to raise their son on her own as a single mother. Her then ex-husband disappeared and did not have any role in caring for or raising their son, [Child E].
At [27] and [28] in reference to the primary applicant and her second child, an Australian‑born child [Child B] born on [date] and an Australian citizen, the report states:
Given [Child B]’s age, she is at a very important development milestone. At this age a child starts to interact more with the world and next year she is about to commence preparatory school. She might. Experience some anxiety as she separates from her parents and begins her school journey. It is common for children to go through a period of “separation anxiety” from their parents as they enter school, however, from a psychological perspective it is important to be mindful that if she is to also experience this significant change in conjunction with the separation from her mother (primary carer) and brother (who she is very close to) for any significant period of time, then this anxiety would most likely escalate and could lead to more significant mental health problems such as generalised anxiety disorder, depression, conduct disorder, obsessive compulsive disorder.
Additionally, [the applicant] has formed a new loving family with [Mr A] and relies on him for her own emotional and psychological well-being. He has helped to rebuild her self‑esteem, self‑confidence and trust in men. He has supported her during her difficult times and they are building a future and life for their family. They hope to have more children in the future as they want to build on their family.
Country information

The Tribunal has taken into account the DFAT Country Information Report Vietnam, 11 January 2022, as relevant, including the information under the heading of ‘Employment and welfare’ at 2.6 to 2.9 which provides that:
The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.
Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.
The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support. For information on health care subsidies see Health.
As to ‘Health’ at 2.13 to 2.15 and ‘Mental health’ at 2.16 to 2.19 it is reported that:
Health
According to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women’s life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia). Economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.
Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill‑equipped. Distance for people living in remote areas can be a barrier to access. Health centres are usually staffed by nurses and midwives, while some may have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese. See also Internal Relocation for information on how place of residence and household registration can affect access to healthcare.
The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidised, while others pay premiums. Healthcare is not free; a co-payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment.
Mental health
Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.
Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self‑describe as mentally unwell and seek treatment.
The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.
In relation to ‘Security Situation’ at 2.32 it is reported that:
Vietnam does not have the same history of terrorism found in other parts of Southeast Asia. The country is generally safe in terms of violent crime and police are a visible presence around the country. Already low violent crime rates have fallen even lower during COVID-19 with lockdowns and increased police presence. Organised crime does exist and has international and national reach. Organised crime is involved in human trafficking, prostitution, extortion and drug activities but the day-to-day lives of most Vietnamese are unaffected. See also Police and People who owe money to loan sharks.
And ‘Women’ at 3.71 to 3.74 provides:
Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65^th (with 1 being the most equal) out of 162 countries. Australia ranked 25^th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.
Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID-19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.
Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.
Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.
‘Single and divorced women’ at 3.82 to 3.86 provides:
Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.
In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.
Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.
DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.
As to ‘Police’ at 5.1 to 5.5 the report indicates at 5.1 and 5.2 that:
There are two main security forces under the Ministry of Public Security (MPS). The People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety, and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration and identification cards.
Police operate at national, provincial, district, and commune levels. The distinction between different police units may not be obvious to people who deal with police, except for traffic police who wear a different coloured uniform. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels. Police are generally well‑trained and many receive degrees in policing or higher-level vocational education.
And as to ‘Conditions for Returnees’ at 5.29 to 5.35, it is reported at 5.34 that:
Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the primary applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicants claim to be citizens of Vietnam and provided copies of their passports. Based on this material, the Tribunal finds that the applicants are who they say they are, and nationals of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicants claims for protection.
Analysis
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicants chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The primary applicant’s claims, that she will suffer from depression and that she would not be harmed, if she was to return to Vietnam, are vague and without any detail whatsoever. The dependent applicant has not made any separate claims.
The primary applicant has not claimed and/or provided any evidence of having fears of harm in Vietnam arising from her race, religion, nationality, political opinion, or as a member of a particular social group.
Having considered the primary applicant’s evidence, including her claims of not fearing harm, her representative’s submissions, the accompanying material, including the psychological report, her present personal circumstances and the relevant country information which does not support that she will face persecution and/or harm if she was to return to Vietnam because she is a woman, single mother, former divorcee, presently unemployed, in need of medical and/or psychological treatment and/or counselling and a failed asylum seeker, the Tribunal finds that the primary applicant’s fears of persecution are not well-founded as required by s 5J of the Act.
Refugee criterion – s 36(2)(a) of the Act
Based on the information before it, the Tribunal, having considered all of the primary applicant’s claims both individually and cumulatively, and considering the cumulative effect of the primary applicant’s claims, finds that the primary applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the primary applicant’s fears of persecution are not well-founded as required by s 5J of the Act, and therefore the primary applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the primary applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the primary applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the primary applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa), the dependent applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act, as he is not a member of the same family unit as a non‑citizen who holds a protection visa of the same class applied for in this application, and therefore the secondary applicant does not engage Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
As the Tribunal has found that the applicants do not meet the refugee and complementary protection criterion and do not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicants have a right to enter and reside in a country other than Vietnam.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning Ministerial intervention provides, as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.
In this regard, the Tribunal acknowledges the personal circumstances of the primary applicant including her marriage to an Australian citizen and the birth of their Australian child, [Child B], on [date] in Australia. The Tribunal notes their child has only lived in Australia and is about to commence her Australian schooling and the expected and likely psychological harm that may arise for both the primary applicant and her [age]-year-old child [Child B] if the primary applicant and the dependent applicant were to return to Vietnam.
When considering all of the applicant’s circumstances, the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as they may continue to reside in Australia with the primary applicant’s Australian husband and young child. In considering the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, the Tribunal considers that the circumstances of the applicant’s case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:
·Compassionate circumstances regarding the psychological state of the primary applicant and her Australian child [Child B] and her Australian husband together with that of the dependent applicant arising from the break-up of their family unit if the applicants were returned to Vietnam.
DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior 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 352

4 January 2023

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