1837741 (Refugee) - [2023] AATA 4587

1837741 (Refugee) [2023] AATA 4587 (29 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Khanh Hoang (MARN: 2015332)
CASE NUMBER:  1837741
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Shahyar Roushan
DATE:29 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second and third named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and

The Tribunal does not have jurisdiction with respect to the fourth named applicant on the basis that there is no valid application for review.

Statement made on 29 November 2023 at 6:14pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – Unauthorised Maritime Arrival (UMA) status – ‘fast track’ applicant status – Part 7 reviewable decision – statutory bar in s 91K and the s 48A bar – application deemed invalid – grounds for reopening a decision – earlier decision treated as a nullity – political opinion – member of the Vietnam Reform Revolutionary Party (Viet Tan) – outspoken critic of the Vietnamese authorities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 65, 46A, 48A, 48B, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Lokuwithana v MIBP [2017] FCCA 176
Michael and Secretary, Department of Employment, Science and Training and Edwards and Secretary, Department of Health and Ageing [2006] AATA 227
MICMSMA v CBW20 [2021] FCAFC 63
Mora (Migration) [2016] AATA 4198
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
BACKGROUND

The applicants are nationals of Vietnam. [The first named applicant] was born in [year] in Nghe An Province, where she also resided.
[In] April 2013, [the first named applicant], [the first named applicant]’s husband, [Mr A], and their two sons (the second and fourth named applicants) arrived in Darwin as Unauthorised Maritime Arrivals (UMAs) and were detained at [an] Immigration Detention Centre. Their third son, the third named applicant, was born in Australia in [year]. They are all citizens of Vietnam.
On 17 March 2016, [the first named applicant] and her three sons were granted Temporary Safe Haven Enterprise (Subclass 449) visas (TSHV) as UMAs, triggering the s 91K bar, as it was interpreted at that time. Internal Departmental records suggest that, at the time of grant, [the first named applicant] and her sons were residing in community detention while [Mr A] remained in immigration detention. For reasons not entirely clear to the Tribunal, it appears that, due to this separation and likely related administrative errors, [Mr A]’s family composition was not recorded correctly by the Department, resulting in [Mr A] and other family members being put on different processing pathways.
Unlike his wife and sons, [Mr A] was not granted a TSHV. However, on 8 July 2016, he was notified that the then Minister had exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (the Act) to allow him to lodge an application for a Temporary Protection (Subclass 785) visa (TPV) or a Safe Haven Enterprise (Subclass 790) visa (SHEV).
On 11 August 2016, [Mr A] lodged an application for a SHEV. The other applicants were not initially included in [Mr A]’s SHEV application, but they were subsequently added to the application on 27 January 2017.
On 12 May 2017, a delegate of the Minister refused to grant the applicants protection visas under s 65 of the Act. As all the applicants were thought to be subject to the ‘fast track’ review process, they applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 26 June 2017, the IAA affirmed the decision under review.
On 1 August 2017, the applicants sought a judicial review of the IAA decision, and [in] June 2018, the then Federal Circuit Court of Australia made a judgment in favour of the Minister.
Following the decision of the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447, on 11 December 2018, the Federal Court of Australia declared that the applicants were not UMAs as defined under s 5AA of the Act at the time (prior to July 2013). Accordingly, they were not ‘fast track’ applicants (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7 reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal). The Court ordered that the decision of the IAA be quashed.
On 22 December 2018, the applicants applied to the Tribunal for a review of the delegate’s decision.
On 5 April 2019, the applicants were re-notified of the delegate’s decision and advised that they could now apply to the Tribunal for a review of the decision. On 14 April 2019, they lodged a second application for review with the Tribunal.
In July 2020, [the first named applicant] and her sons were notified by the Department that the Minister had lifted the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on ss 5H(2), 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. As [Mr A] did not hold, or previously hold, a TSHV when he applied for a SHEV on 11 August 2016, his application was deemed valid as the s 91K bar did not apply to him, and he was not covered by the Minister’s determination.
On 19 August 2020, [the first named applicant] and her sons made a further application for a SHEV.
On 21 October 2020, a differently constituted Tribunal (the first Tribunal) remitted the matter for reconsideration with the direction that [Mr A] satisfied s 36(2)(aa) of the Act. On the basis of its understanding at that time that the remaining applicants were subject to the s 91K bar, the first Tribunal determined that the decision of the delegate to refuse to grant protection visas be set aside and substituted a decision that the (first) SHEV application made by [the first named applicant] and her sons was invalid.
On 21 October 2020, the first Tribunal also determined that it did not have jurisdiction to review the application that was lodged with the Tribunal on 14 April 2019, on the basis that the delegate’s decision had already been the subject of a valid review by the Tribunal.
On 4 May 2021, the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 determined that the TSHV grants in the Ashmore-affected cases were invalid, the s 91K bar was not applicable and the Tribunal could undertake a substantive review of decisions to refuse these applicants SHEVs or TPVs. Accordingly, the first SHEV application of [the first named applicant] and her sons was not subject to the s 91K bar. It was a valid application and the applicants had made a valid application to the Tribunal for review of the delegate’s decision of 12 May 2017. As a result, the s 48B determination is not applicable, the s 48A bar was not lifted and the visa applications made following the purported bar lift would be invalid. Therefore, the second visa application, which is yet to be determined by the Department, is likely barred under s 48A and is therefore invalid.
On 6 September 2023, the Tribunal was advised by the applicant’s representative that the fourth named applicant had passed away [in] February 2023.
REOPENING
The Tribunal has no power to vary or revoke a decision, including dismissal decisions under ss 362B and 426A of the Act, after the day and time the decision is either given orally or the written statement made. Accordingly, the application will be finally determined, and the Tribunal will be functus officio at that time. Generally speaking, the Tribunal lacks the power to reopen a decision that has been properly made and notified. However, reopening a matter is considered to be justified in certain but very limited circumstances.
In the case of Mora (Migration) [2016] AATA 4198, an interlocutory decision of the AAT considering a request to reopen an earlier no jurisdiction decision, the Tribunal endorsed the conclusions of the then AAT President, Downes J, in Michael and Secretary, DEST and Edwards and Secretary, DHA[1] that ‘in all but the rarest of cases, tribunal decisions must be treated as final…’ and stated that reasons justifying the refusal to reopen a decision include the existence of any circumstances that might lead a court to refuse relief in the exercise of its discretion, such as the existence of bad faith, delay, lack of standing, futility, adverse effect on the public interest and the public interest in good administration.[2] The Tribunal in Mora referred to a number of factors that led it to consider it both lawful and sound to treat its earlier decision as a nullity. Mora was subsequently cited with approval by the Federal Circuit Court in Lokuwithana v MIBP [2017] FCCA 176.[3]
[1] Michael and Secretary, Department of Employment, Science and Training and Edwards and Secretary, Department of Health and Ageing [2006] AATA 227 at [17].
[2] Mora (Migration) [2016] AATA 4198 at [52], [91].
[3] Lokuwithana v MIBP [2017] FCCA 176 at [103]. See also Erasga v MIBP [2019] FCCA 228 at [75] where the Court held that Mora is not inconsistent with judicial authority and simply provides practice guidance to ensure that Tribunal reviews are not reopened excessively. In this matter, the Tribunal reopened the review when it realised that material, which was relevant to the review and had been provided by the applicant, had not been considered. The Court found it was open to the Tribunal to reopen matters in these circumstances.
Having considered the factors referred to in Mora and the protracted procedural history of the matter before me, I decided to reopen the decision of the first Tribunal in relation to [the first named applicant] and her surviving sons. As the first Tribunal made a substantive favourable decision in relation to [Mr A], I did not consider reopening the first Tribunal’s decision in relation to him. The decision made in relation to [Mr A] by the first Tribunal stands and he has not been named on the front page of this decision record.
With regard to [the first named applicant] and her sons, CBW20 provided clear, recent and unambiguous judicial authority to support the conclusion that the Tribunal’s earlier decision to set aside the decision of the delegate and substitute a decision that the (first) SHEV application was invalid was plainly wrong. Relevantly, the Tribunal had not yet specifically considered, let alone made a decision on, the merits of the review. Furthermore, recent correspondence received from the Department indicated that the Department was open to the Tribunal considering revisiting the invalid determinations made. I also formed the view that the outcome of reopening the matter was consistent with both the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and was not inconsistent with promoting public trust in its decision-making, particularly in circumstances where one family member had obtained a different outcome.[4] I considered it both lawful and sound to treat the first Tribunal’s decisions in relation to [the first named applicant] and her sons as a nullity.
[4] Mora (Migration) [2016] AATA 4198 at [20].
CLAIMS AND EVIDENCE
[The first named applicant] attended an entry interview held on 16 May 2013, essentially claiming to have departed Vietnam due to her fear of being persecuted as a Catholic and subsequent to the participation of her husband in a candlelight vigil protest at the chapel of Con Coung District in July 2012.
As mentioned earlier, [the first named applicant] was initially included in her husband’s SHEV application as a member of his family unit and did not make her own claims for protection.
That application was refused, and [Mr A] applied for a review of the delegate’s decision to the first Tribunal. In pre-hearing submissions provided to the first Tribunal, [the first named applicant] raised her own claims for protection, namely that she is a member of the Vietnam Reform Revolutionary Party (or Viet Tan). The claim was supported by letters from [Chapter 1] of the Vietnamese Community in Australia, stating that [the first named applicant] has been an active member of the Catholic community since 2014 and she is a member of Viet Tan. [The first named applicant] also submitted photographs depicting her participation or attendance at Viet Tan events, including a photograph showing her being granted an award for being an active member of Viet Tan for the year 2019–2020.
In her covering submissions, [the first named applicant]’s representative, Ms Khanh Hoang, submitted that [the first named applicant] had been involved in Viet Tan activities since 2017 and that evidence of her involvement was not available at the time of the decisions made by the delegate and subsequently the IAA. Ms Hoang submitted that [the first named applicant] had publicly announced her membership with Viet Tan on social media and provided supporting evidence, including copies of posts from [the first named applicant]’s [social media] page in the Vietnamese language.
In oral submissions at a hearing before the first Tribunal, Ms Hoang submitted that the large photographic evidence submitted before the hearing related to [the first named applicant]’s Viet Tan-related social media activities on [social media]. Sight translations of the contents of posts were rendered at the hearing, indicating that the posts related to the commemoration of 2020 Heroes’ Day, criticism of the Vietnamese government, support for human rights activities in Vietnam, political prisoners in Vietnam and reposting of Viet Tan-related content. Ms Hoang submitted that by publicly sharing her critical views of the Vietnamese government on social media, [the first named applicant] was at risk of being harmed if removed to Vietnam.
The first Tribunal accepted these claims and although it ultimately decided that the first SHEV application made by [the first named applicant] and her sons was, it found that [Mr A] satisfied s 36(2)(aa) of the Act on the basis of the political opinion that would be imputed to him because of [the first named applicant]’s activities. The first Tribunal found that [the first named applicant] ‘will be identified as an active member of the Viet Tan and will be further identified through her postings on [social media] as an outspoken critic of the Vietnamese government and authorities’.
After deciding to reopen the matter, I invited [the first named applicant] to appear before the Tribunal via video on 18 September 2023. [The first named applicant] was assisted by an interpreter in the Vietnamese and English languages. Ms Hoang also attended the hearing.
Following the hearing, Ms Hoang provided detailed submissions in support of the application, which included a copy of a Statutory Declaration, declared by [the first named applicant] on 18 August 2020 and submitted to the first Tribunal, as well as a large volume of other evidence.
In her Statutory Declaration, [the first named applicant] stated that she fears persecution in Vietnam on the basis of her father’s past association with the US Army, imputing his family with a pro-US political opinion, and her online criticism of the Vietnamese government. She claimed that her father served in the US Army during the Vietnam war and was sentenced to 10 years’ imprisonment in 1965 on charges of being an American spy and against the communist government. As her father was not issued any documents to prove his imprisonment, he did not qualify for settlement in the US under the Humanitarian Operation 1989 and other complications prevented the family from being able to migrate to the US. [The first named applicant] and her husband experienced police harassment between 2003 and 2007 due to her family profile.
[The first named applicant] stated that after attending the vigil on 2 July 2012, her husband was summoned by the authorities three times. Whilst he complied with the first two summonses, he decided to flee to Saigon in October 2012. [The first named applicant] followed her husband to Saigon in March 2013 and subsequently travelled to Australia by boat. In Australia, she settled in [Suburb 1] and became involved in Viet Tan. Her experiences in Vietnam propelled her to become vocal against the oppression of human rights and freedoms, including on [social media]. In 2019, she ‘officially’ joined Viet Tan and was a ‘key’ fundraiser for [Chapter 1].
The supporting evidence submitted by Ms Hoang included printouts and screenshots of [the first named applicant]’s activities online and on social media, photographic evidence of [the first named applicant]’s participation in numerous protests and other activities in support of Viet Tan and against the Vietnamese government, evidence of [the first named applicant]’s involvement in fundraising activities for Viet Tan and the pro-democracy movement in Vietnam, photographic evidence of [the first named applicant] being awarded a Viet Tan recognition award and a [online] videoclip, dated 2021 and showing [the first named applicant] expressing her political views, criticising the Vietnamese government.
Ms Hoang also submitted letters of support from [Rev B], [Fr C] of [specified] Catholic Parish, [Dr D], [office bearer] of [Chapter 1] of the Vietnamese Community in Australia and [Mr E], [Branch 1] of Viet Tan, who provided three letters of support, dated 28 August 2019, 8 August 2020 and 27 September 2023, confirming [the first named applicant]’s continued association and involvement with the party as an active member. In his most recent letter, [Mr E] noted that [the first named applicant] had requested a pause in her membership in January 2023 to deal with the loss of her son.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
On the basis of the evidence submitted to the first Tribunal and subsequently to the present Tribunal, I accept that [the first named applicant] began associating with Viet Tan soon after her arrival in Australia and that she formally joined the party in 2019. I accept that [the first named applicant] continues to be a committed member of Viet Tan, although she briefly paused her activities recently due to the illness and subsequent death of her son.
I accept that during the course of her involvement with Viet Tan in Australia, [the first named applicant] has participated in numerous protests, has been a vocal critic of the Vietnamese government and its policies, has supported human rights activities in Vietnam and has expressed her views online through [social media] posts and YouTube videos. I find, as was previously found by the first Tribunal, that there is a real chance that [the first named applicant] will be identified as an active member of the Viet Tan and an outspoken critic of the Vietnamese government and authorities if she were to return to Vietnam. I also find that [the first named applicant] will seek to continue her political activities and/or to express her views if she were to return to Vietnam.
The country information sources I have consulted indicate that opposition pro-democracy groups and those with overseas links such as Viet Tan have been proscribed as terrorist organisations. As political opposition parties are illegal within Vietnam, opposition parties are typically based overseas to avoid harassment, arrest and detention.[5] According to DFAT, Viet Tan is a US-based opposition group with an active branch in Australia that advocates for democracy in Vietnam.[6] In 2016, the government declared Viet Tan a terrorist organisation and stated that anyone involved with the group would be considered an accomplice in terrorism.[7] Other opposition groups, who are reported to have links to Viet Tan, have been accused of activities aimed at overthrowing the government.[8]
[5] 'Report of a Home Office fact-finding mission to Vietnam – Conducted between 23 February and 1st March 2019', UK Home Office, 9 September 2019; and 'DFAT Country Information Report Vietnam', DFAT, 13 December 2019.
[6] DFAT, ibid.
[7] 'Vietnam declares San Jose-based Viet Tan a terrorist group', Associated Press (AP), 7 October 2016,
[8] DFAT, n5, above.
Evidence before me points to numerous arrests of alleged Viet Tan members in recent years, including of Australian citizens.[9] There is also evidence to suggest that, more generally, activists seeking to exercise their freedom of expression or association may experience harassment, surveillance, restrictions on their movement, short-term detention and imprisonment.[10] This adverse response extends to online activities, with reports of government repression of online activism, ranging from electronic harassment, fines and – in some instances – to arrest and imprisonment.[11] A new cyber security law, which came into force in January 2019, gives the government greater surveillance and censorship powers, requiring service providers to take down offending content within 24 hours, and internet companies to disclose user data to authorities. The law prohibits people from ‘distorting history, denying revolutionary achievements, destroying the national solidarity block’ and ‘providing false information, causing confusion amongst the Citizens, [and] causing harm to socioeconomic activities.’[12] There is limited government tolerance of direct political opposition and advocacy of a multi-party political system. Threshold topics included criticism of individual government leaders or the party, promotion of political pluralism or multi-party democracy and questioning policies on sensitive matters, such as human rights, religious freedom or sovereignty disputes with the People’s Republic of China.[13]
[9] See DFAT, ibid; 'Vietnam Human Rights Report, January – June 2019: Crackdown on Facebook Users, Civil Society Groups, and Public Protesters Continues', The 88 Project, 31 July 2019, and '2019 Report on Political Prisoners and Activists at Risk in Vietnam', The 88 Project, 22 June 2020, 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, ‘“Law of the Jungle” for Pham Doan Trang’, The Vietnamese, 16 October 2020, and ‘Torture and Inhumane Treatment of Political Prisoners in Vietnam: 2018–2019’, The 88 Project, 5 November 2020,
[11] See 'Joint Submission of The 88 Project and the Global Human Rights Clinic of the University of Chicago Law School to the Universal Periodic Review of the Socialist Republic of Vietnam', The 88 Project & the Global Human Rights Clinic of the University of Chicago Law School, 1 November 2021, and 'Freedom on the Net 2022 – Vietnam', Freedom House, 18 October 2022,
[12] ‘Submission to the Universal Periodic Review of Vietnam’, Human Rights Watch, 13 July 2018, ‘Vietnam’s New Cyber Law Could Hobble Foreign Investors and Limit Basic Freedoms’, Centre for Strategic and International Studies (CSIS), 2 July 2018, and 154 'Human Rights in Asia-Pacific: Review of 2019', Amnesty International, 29 January 2020,
[13] 'Domestic and Foreign Policy in Vietnam: The Future of Vietnamese Civil Society', Carl Thayer, Georgetown Journal of Asian Affairs, 2019, 'The State in a Capitalist Society: Protests and State Reactions in Vietnam and Indonesia', Wischermann, Jorg; Phuong Dang, Thi Viet & Sirait, George Martin, Journal of Contemporary Asia, 6 April 2022, and ‘Country Reports on Human Rights Practices for 2022 – Vietnam', US Department of State, 20 March 2023,
The most recent DFAT Country Information Report in relation to Vietnam noted that whilst topics that are deemed to be sensitive can change or depend on local government priorities at the time, ‘some “red lines” and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day.’[14] According to DFAT:
Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted…
It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination…[15]
[14] 'DFAT Country Information Report Vietnam', DFAT, January 2022.
[15] DFAT, ibid.
DFAT further noted that it is likely a repeated pattern of online activity would attract authorities’ attention.[16]
[16] Ibid.
On the basis of the evidence before me, I find that if [the first named applicant] were to be removed to Vietnam, there is a real chance that she would be subjected to threats to her life or liberty, significant physical harassment and significant ill treatment at the hands of the Vietnamese authorities. I am satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I find that the essential and significant reason for the persecution feared by [the first named applicant] is her political opinion. I am satisfied that the real chance of persecution relates to all areas of Vietnam. As [the first named applicant] fears harm by the Vietnamese authorities, I find that effective state protection against the harm she fears is not available to her. I further find that [the first named applicant] cannot be expected to take reasonable steps to modify her behaviour to avoid the real chance of persecution. Therefore, I find that [the first named applicant] has a well-founded fear of persecution in Vietnam and that there is no presently existing right, however expressed, for [the first named applicant] to enter and reside in any other country. It follows that s 36(3) does not apply.
For the reasons given above I am satisfied that [the first named applicant] is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The second and third named applicants have not made their own claims for protection. I am not satisfied that the second and third named applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, I am satisfied that they are members of the same family unit as [the first named applicant] for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of [the first named applicant]’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
I accept [the first named applicant]’s evidence that the fourth named applicant passed away in Australia [in] February 2023. It follows that the review application in relation to the fourth named applicant lapses and there is no valid application for review. The Tribunal, therefore, does not have jurisdiction with respect to the fourth named applicant.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second and third named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and.
The Tribunal does not have jurisdiction with respect to the fourth named applicant on the basis that there is no valid application for review.
Shahyar Roushan
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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