1922908 (Refugee)

1922908 (Refugee) [2023] AATA 2521 (28 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jessica Schulman
CASE NUMBER:  1922908
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Luke Hardy
DATE:28 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2023 at 11:33am
CATCHWORDS

REFUGEE – Protection visa – Vietnam – loan sharks – membership of particular social
groups – victims of domestic and family violence from their families – Single and/or divorced women – risk of family violence is in the past – being a person convicted of a crime whilst abroad – criminal conviction –clearly contradictory evidence– delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [Ms A], is a citizen of Vietnam. As she told me, she arrived in Australia on [date] January 2016 on a [tour] and absconded from the tour group after a day and a half. Her visitor visa expired on [date] April 2016 and she became an unlawful non-citizen. Previous married, she divorced her husband (who remained in China) at some stage between the date of her arrival in Australia and [date] October 2019, when she married an Australian citizen.
Meanwhile, [Ms A] had lodged a protection visa application on 30 May 2018, over two years after she arrived here.
The delegate refused to grant the visa on 16 August 2019. [Ms A] lodged a merits review application with this Tribunal on 17 August 2019, the day after being notified of the delegate’s decision.
[Ms A] was arrested and charged in a matter of cannabis cultivation in 2020. She told me she was convicted and jailed for four-and-a-half years with a non-parole period of three years. She was released into immigration detention and is now in community detention.
[Ms A] appeared before the Tribunal on 16 June 2023 to give evidence and present arguments. She was accompanied by her adviser, a Legal Aid lawyer. A colleague of the adviser attended as an observer.
The Tribunal hearing was facilitated by two interpreters in the Vietnamese-English medium. The first interpreter appeared by video; the second, after a one-hour adjournment, by telephone.
I am satisfied that [Ms A] was not prevented from giving cogent evidence at the hearing by an factor outside of her control.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidencE
The issues
The key issue in this case is whether, on accepted evidence, [Ms A] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the former Department of Immigration (the Department)
[Ms A] is from Hai Phong, a coastal city to the east of Hanoi. She was married in Vietnam and bore a daughter in [year] and son in [year]. Her daughter is now [age] and attends university where she is studying [a major] with a view to a career in [a field]; she will graduate in 2024. [Ms A]’s son is now [age] and is about to complete secondary school. Both of [Ms A]’s children have usually resided with their father and paternal grandmother in Hai Phong, although the daughter is currently boarding close to her campus in Hanoi.
[Ms A]’s original claims to the Department were brief and unsupported:
I LEFT VIETNAM BECAUSE … THERE ARE SOME PEOPLE … TRYING TO KILL ME
I MIGHT GET KILL [sic] WHEN I GET BACK TO VIETNAM
Prompted in the application form to say whether she might be able to relocate to avoid harm, [Ms A] said:
WHEREVER I GO THEY STILL CAN FIND ME.
Prompted to give details about the type of harm or mistreatment she feared, about the person or people who would be responsible for the harm or mistreatment, and about why they would harm or mistreat her, [Ms A] said:
I MIGHT GET KILL [sic]
Prompted to explain why state protection would be unavailable, [Ms A] said:
NO ONE CARE ABOUT MY SAFETYNESS [sic]
[Ms A]’s PV application was typed in English. It is clear she had assistance from somebody as she claimed to speak no English and claims still to speak very little. She nevertheless claimed to have received no substantive or interpreting assistance in completing the application.
For the purposes of this review, [Ms A] submitted a copy of the delegate’s decision. The delegate gave negative weight to [Ms A]’s apparent delay in lodging her PV application.
Evidence to the Tribunal
The Tribunal originally invited [Ms A] to a hearing that was to be held on 2 May 2023. A request for postponement was received from a newly-appointed representative who also sought access to [Ms A]’s files under FOI. The Tribunal agreed to this request and later facilitated easier access to the Department’s file in this matter. The Tribunal was then able to schedule a hearing for 16 June 2023.
Prior to the hearing the Tribunal received from [Ms A] a statement of claims, a covering submission from her adviser, reports from DFAT and the UK Home office, a document discussing gender-based violence in Vietnam, and testimonial letters from her mother and daughter.
The covering submission summarised [Ms A]’s substantive claims:
[Ms A] is seeking protection in Australia, and not to return to her home country – Vietnam – owing
to a well-founded fear of being persecuted on the basis of her membership of particular social
groups:
·People who have borrowed money from loan sharks, pawnbrokers and/or gangsters
·Women who have been victims of domestic and family violence from their families
·Women who are at risk of domestic and family violence (DFV)
·Single and/or divorced women
The people [Ms A] fears harm from in Vietnam include:
·Her husband
·Her in laws (including mother in law, father in law and sister in law)
·People who work for her husband’s family in their illegal moneylending business
The harm she fears includes:
·Physical beatings
·Torture
·Cruel and inhuman, and degrading treatment or punishment
·Arbitrary deprivation of her life
[Ms A] maintains there is nowhere in Vietnam where she can go to be safe, and that the authorities of Vietnam are unwilling or unable to protect her, for reasons including her gender.
Additionally, [Ms A] claims she faces a real risk of being arbitrarily deprived of her life, torture, cruel and inhuman and degrading treatment and punishment if she is removed from Australia.
[Ms A]’s own statement of claims reads as follows:
1. My name is [Ms A]. I am a Vietnamese national.
2. I was born on [date] in Hai Phong, Vietnam.
3. I have two children from my first marriage: a son and a daughter. My daughter’s name is [name], born [date]. My son’s name is [name] [date].
4. I come from a very poor farming family. When I was in [a grade] at school, my
father died. This put a lot of financial pressure on my family.
5. When I was [age] years old, I got married to [name]. My husband’s family are pawn brokers, gangsters and loan sharks. People borrow money from them, and they charge very high interest. When people cannot pay the interest on the loan, they think nothing of threatening, assaulting them physically or even killing them. They don’t believe the law applies to them, and regularly commit crimes in order to financially support and protect the family.
6. My in[-]laws are known to put people in the hospital for failing to pay their loans
back.
7. I know this because I lived with the family for more than 10 years. The family
had people working for them. They would say things like “I went to visit so[-]and-
so and now they are in the hospital.”
8. My husband’s family did not approve of me because I came from such a poor family. They treated me worse than a dog. For example, I was not permitted to eat with the family at the dinner table. I was only allowed to eat my meal after everyone had finished eating. I would regularly cry into my food.
9. Over the years I lived with my in[-]laws, I was verbally and physically assaulted by my sister-in-law and my parents in law.
10. My husband was also physically abusive. He would hit me almost every single
day.
11. When I was [pregnant], my sister-in-law pushed me down the stairs. I
was very lucky I did not miscarry.
12. After my daughter was born, I decided to report the abuse from my husband and his family to the police. I reported the abuse at the police station in [a] province within Hai Phong on two separate occasions, but the police didn’t do anything.
13. My children witnessed the abuse I endured from their father and his family.
This has affected them to the point that my daughter says she never wants to
have a boyfriend or get married.
14. When my daughter was [age] years old, I borrowed money from my mother-in[-]law.
At the time I felt at the time I had no choice. I borrowed 300,000,000 DONG which is the equivalent of about $20,000 Australian dollars. My in[-]laws charged me very high interest rate of 9,000,000 DONG per month. I opened a [shop] but it was not successful and I closed it down.
15. I was only able to pay the interest rate for a few months after opening the shop but then I had to close the shop because I wasn’t making any money. My father-in-law, husband and sister-in-law beat me, and the beatings were worse than before. My husband used cane and stick to beat me. My father-in[-]law also used a cane to beat me. They would beat me all over my body including my head and face. I had bruises on my body because of the beatings.
16. I felt I had no choice but to escape the situation, and I travelled to Australia in January 2016. I fled without telling my husband or my in[-]laws.
17. When I arrived to Australia, I found the courage to tell my husband I wanted a
divorce.
18. My husband in Vietnam did not want to sign the divorce papers until I had paid back the loan. I managed to convince him to sign the divorce papers even though I had some of the loan to repay.
19. On [date] October 2019, I married [name], and he is an Australian
citizen.
20. We had some problems. My husband was also abusive towards me. In December 2019, my husband picked up a knife in the middle of an argument with me and tried to kill me. This was not the last time he did this to me. I often felt as though my life was in danger.
21. I continued to repay the loan to my in[-]laws, up until 25 March 2020 when I was arrested.
22. I am still in regular contact with my children and my mother. My children tell me that my husband’s mother told them if I return to Vietnam, no matter where I try to hide, they will find me and kill me.
23. I believe this threat is real. My husband’s family are very capable of hunting a person down and killing them with no remorse.
24. I believe if I return to Vietnam I will be killed by my husband’s family ...
25. I cannot relocate to anywhere in Vietnam and be safe. My in[-]laws have connections all over Vietnam. They have people all over the country that follow their direction. It will be easy to find me ...
26. I don’t believe the authorities can protect me from the harm I fear from my in[-]laws and my ex-husband.
27. I have reported the abuse I experienced from my husband and in[-]laws on two separate occasions to the police. Nothing happened.
28. Violence against women in the home is not important to the police in Vietnam. Women’s problems are considered insignificant and are not taken seriously.
29. In addition to this, my in[-]laws are very easily able to pay their way out of trouble. I know that they have done this before.
30. This statement was read to me with the assistance of a Vietnamese interpreter and this statement is true to the best of my knowledge.
[Ms A] told me her children lead “normal” lives and live with her ex-husband. She said that after she arrived in Australia, and up until she was arrested in 2020, she was steadily sending money home to support her ex-husband “financially” and pay for her children’s study. She said she also sent money home to support her biological mother and brother. When I asked her whose bank account her remittances were sent to, she said they went respectively to her ex-husband’s and her mother’s.
I asked [Ms A] why she came to Australia and she said she came here to avoid domestic violence. She said she was often beaten. She said she told a “friend” about it and that friend told her to go to Australia for tourism. I put to her that tourism is expensive and only temporary and soon enough requires a person to return to his or her home country. I asked her how a holiday in Australia was supposed to have addressed her domestic violence problems. It was necessary to ask this question three times because the first two replies were discursive and off the point. Originally, [Ms A] said she just wanted to see Australia, but on the third occasion, [Ms A] said her own subjective purpose was to come here and stay permanently.
I asked [Ms A] how she was able to afford to travel to Australia as a tourist whilst bound to a usurious loan. She said her “friend” invited her to work at [a] company where he or she worked, telling her that in six months the company’s staff would go on a group holiday to Australia. I asked [Ms A] for detailed information about what information she submitted to the Australian embassy in Hanoi in pursuit of her visa, such as as evidence of bank savings, etc. In reply, she said that all the information required by the Embassy would have been provided by the [company] for which she worked. I put to her that it would be highly unlikely that an employer would be able to provide absolutely everything an individual would be required to provide in support of a visitor visa. In reply, she said the “friend” in the [agency] arranged “everything” and that whatever she signed she did not know what she was signing. I expressed concern at this and [Ms A] then seemed to change her evidence: she said her “friend” explained to her what she was signing. I asked her if she was accustomed to signing documents purely on the basis of what other people suggested they contained, and she said this was the first time she had ever been required to sign anything. Basically she claimed ignorance of all aspects of the cost and logistics involved in getting her to Australia.
[Ms A] said she travelled with several other people, all of whom she told me she knew. She said the stated period of stay was a week and that she absconded from the group after one-and-a-half days. She said that even though she knew all the other people in the group she never followed-up what happened to any of them. Essentially, even though at least one of the members of her group was her “friend,” [Ms A] claimed to have had no further contact with, or even heard any word about, any of them at all after she absconded from the tour group in which she arrived on [date] January 2016.
I asked [Ms A] what she then did upon absconding from the tour group. In reply, she said “one of my friends” arranged for her brother to take her to his home in [a suburb]. It seemed notable that [Ms A] had this arrangement in place at the time of absconding from the group. She said she did not know her friend’s brother’s status in Australia or how long he had been here, although she did suggest he might have originally come here as a student. Again, [Ms A] appeared to be describing herself as the beneficiary of arrangements by “friends” and of circumstances created to help her, of which she had and sought no knowledge or understanding whatsoever.
I put to [Ms A] that it seemed curious in the circumstances of a woman being taken home by a man she did not know that she did not try to find out anything about him. In reply, she said that the man moved out of his home “as soon as” he moved her in there. She said he visited her twice and then had no further contact with her either in that home or anywhere or else or by any other means. Put like that, he left her unconditionally and rent-free in a furnished residence that, according to later evidence, was rented by him, which would mean that he was responsible for rent and bond conditions while disappearing from the scene altogether. I asked [Ms A] if she stayed in the man’s residence rent-free and she said she paid A$150 per week. I asked her how she could have afforded to do that and she said she had brought A$1000 (I note this would be around Đ16 million, at least today[1]) from Vietnam.
[1]

[Ms A] claimed that her friend’s brother’s landlord helped her start a job in a [ shop] within two weeks of her arrival in Australia. This would have been illegal work as she was only on a visitor visa that would expire within three months. [Ms A] gave me evidence to the effect that she worked in the [shop] for around four years as she was doing that work and engaging in commercial cannabis production by the time she was arrested in 2020. She said she took on the cannabis work to supplement her income from the [shop].
One way to interpret all the events that got [Ms A] a passport in May 2015, a trip to Australia in January 2016, almost instant access to no-questions-asked accommodation here and then assistance in finding paid work here that she retained for several years is that she had an extraordinary run of a great deal of unalloyed good luck. Meanwhile, [Ms A] hardly knew any of the people who she said helped her and understood virtually none of what was happening around her. She said this was because she did not speak or read English, but she gave evidence at the hearing to the effect that she moved entirely within a Vietnamese-speaking social environment.
I asked [Ms A] for details about her job at the [shop]. She told me it was in [a suburb] about five minutes’ walk from the suburban railway station. I asked her the name of the shop and she said she never found out because she did not speak English. I put to her that the name of the shop would have appeared in signage in the same alphabet used in Vietnamese. I put it to her that it would likely be used in day-to-day talk, say, commonly spoken aloud by people answering telephone calls onsite. It would be useful for her and others in inviting friends and potential customers. In response, [Ms A] said she never paid attention to such things. I asked [Ms A] for the name of her boss and she said she only ever knew her boss’s first name the whole time she worked there: [Ms B]. I understand that the vernacular, casual and even sometimes formal way of addressing and referring to others in Vietnamese culture is to use only the given name.[2]
[2]
I asked [Ms A] if she ever got to know any other workers in the shop over the years of her having worked there and she said she did not pay much attention as she was busy learning to do the job. She said she had no friends at work and that she just used to do her job and then go home.
Looking at the oral evidence at the Tribunal hearing up to this point, it is my confident impression that [Ms A] was evasive in response to questions about her migration history. It seemed very hard to believe she was the multiple beneficiary of so much serendipity, starting with a whole [company] that just happened to be preparing to come to Australia around the time she needed to escape from Vietnam and that was happy to employ her and bring her along. The speed and ease in accessing both accommodation and employment also struck me, at least cumulatively, as being difficult to believe. Her evidence about the [shop] struck me as being evasive, given that she claimed to have worked there for around four years and, therefore, could not logically have been distracted by induction and job training the whole time. [Ms A]’s claimed reliance of the timely and seemingly gratuitous intervention of friends, their family members and in one case a friend’s brother’s landlord struck me, at least in the interim, as having quite exclusively the characteristics of pure fabulation.
The Tribunal needs to be careful about what weight to give concerns in relation to the evidence discussed above. It is reasonable that a person who intended to move to Australia indefinitely albeit on a short-term visa and who worked here and sent money home for a period of several years might be reticent to give details about who and what was involved lest she get others, and hence possibly herself, into trouble. With that in mind, there is an argument at least in principle for the Tribunal quarantining concerns about deficiencies in an applicant’s evidence about his or her migration history from its consideration of that applicant’s more substantive claims. I shall return to this issue later.
I asked [Ms A] if she used any of her time before or after her visitor visa expired to find out how she might be able to stay permanently in Australia. In reply, she generally indicated that that she had never heard of Australia’s protection regime, even though she had at least some vague recollection, dating back to her time in Vietnam, of Vietnamese people having been granted protection here: she said she had heard about it but, as she said about a number of matters in her evidence generally, she “did not pay attention” to it at the time. Overall, she indicated that, if she ever asked any questions or felt any curiosity about how to be able to remain here, her enquiries did not go beyond the broad topic of how to obtain PR. She said that she was afraid to come forward to ask about how she could stay in Australia because of her illegal status: she was frightened of being caught. She told me that she did not find out that there was a PV path to residency in Australia until 2018 when she happened to be told by “a friend of a friend.”
Meanwhile, [Ms A] said the [shop] owner Ms [B] had told her that the only way to be able to obtain permanent resident status in Australia was to marry here. She then said something which contradicted evidence she had previously given in writing in her statement quoted above, where she characterises her divorce as being motivated purely as a means of escaping violence and coercive control from her ex-husband. She said to me that had she not been given this advice from Ms [B] she would not otherwise have sought to divorce her ex-husband, which she said she did in 2019. The discrepancy in her evidence as to the motivation of her divorce struck me as concerning, not least in light of her evidence to the effect that she continued to send money home to support her ex-husband financially by remitting money to his bank account up until the time of her arrest by NSW police in 2020.
Though [Ms A] told me that she obtained a divorce for the purposes, or in the hope, of gaining permanent residence in Australia, it is reasonable to consider whether she meant that only through gaining permanent residence here could she insulate herself permanently from the harm she claimed to have suffered at the hands of her then-husband and his family. However, that does not explain why she continued to support her ex-husband financially up until her arrest and conviction in Australia made that impossible to continue. Also, she did say that gaining permanent residence was the only reason she sought the divorce.
I asked [Ms A] to explain what serious or significant harm she would face in Vietnam as a divorced woman, or for reasons of being one. In reply, she said there are lots of divorced women in Vietnam. She then said her only substantive worry in this case is that her ex-husband’s family, which hates her, has threatened to murder her over the matter of the loan.
[Ms A] claimed that her husband agreed to divorce her strictly and solely on the condition that she continue to repay the loan. This evidence, however, did not appear to sit with the evidence of her having continued to support her husband financially up to 2020, as that support appeared to have nothing to do with any loan. Also, none of the evidence suggested there was any way [Ms A]’s then-husband would be able to hold her to the agreement: in the claimed circumstances it would be easy for her to agree to finish replaying the loan, get her divorce and then abandon her undertaking altogether. According to her, there was nothing in the arrangement to incentivise her compliance with what she purported to be her then-husband’s divorce terms. In this way, there appeared to be an air of unreality about the conditions under which he agreed to proceed with the divorce. [Ms A]’s evidence about her husband’s agreeing to the divorce seemed confused for another reason. At the time he agreed to it, he was allegedly threatening to kill her if she returned to Vietnam, but happy enough to divorce her for monetary reasons while she remained abroad, even though no way to enforce repayment while she was abroad was ever mentioned. Meanwhile, [Ms A] said that her ex-husband’s family forbade the divorce and that her husband, in the midst of all this, gutlessly went along with what his family wanted, and yet the divorce was mutually agreed between the then-spouses on the basis of a totally unguaranteed and unguaranteeable promise to keep repaying the loan. The only coercive element was the threat to kill her if she returned to Vietnam without having finished off paying the loan, but looked at objectively, this gave [Ms A]’s ex-husband and former in-laws little power in the face of constancies that might, and purportedly did, arise.
[Ms A] gave what appeared to be confusing evidence about her ex-husband’s family’s use of the money she specifically sent home to help her children. She told me that they took the money she sent home for the children’s tuition and put it instead into recovering the money lent to her. This, however, did not appear to sit with [Ms A]’s evidence of her children having progressed, and continuing to progress, comfortably through their studies, her daughter approaching graduation her son’s life in particular appearing, as she said, to be “normal”. I expressed concern about this and [Ms A] introduced new information to the effect that both of her children have part-time jobs that pay for their board and tuition. This new information appeared not to be inconsistent with evidence to the effect that [Ms A] had ceased to be in a capacity to support her children’s education since her arrest in 2020; but did appear inconsistent with evidence she provided earlier in the hearing about having sent them money for their education up until 2020. Overall, the evidence indicates that [Ms A]’s children have progressed stably and without exogenous pressure through their respective educations and that their only uncertainties are down to choosing which to field to pursue in future.
I asked [Ms A] for details about the purported loan. She confirmed that the principal loan amount was Đ300 million. I note that Đ300 million is approximately A$19,000.[3] [Ms A] told me the monthly interest instalments were set at Đ9 million, which is about A$560.[4]
[3]
[4] >
[Ms A] told me that the loan was made to her without any terms or conditions. She said there was no collateral or forfeit agreed to, and no guarantor or guarantee. Her adviser drew my attention to independent reporting about loan sharks’ loans in Vietnam being subject to less formal conditions and guarantees than bank loans, and I have taken that into consideration. She said she received verbal threats on her own life several times. Meanwhile, the evidence indicated that the lender could do nothing to recover interest or principal if the borrower absconded, say, abroad. However, [Ms A] claimed to have kept up with payments until 2020 when she was arrested by the NSW Police.
[Ms A] told me that the loan was made in 2012. She said that interest was paid on the loan continuously over the whole three or four years she remained in Vietnam. Interestingly, [Ms A] told me that she and her ex-husband made the repayments effectively as joint borrowers of the money lent by her mother-in-law. I asked [Ms A] how she and her husband were able to keep paying all that interest on the loan over that period and she said they both worked for his mother and were paid a total of Đ15 million per month, the remainder going to as far as it could to school fees and subsistence. All this evidence indicated to me that the usurious interest rate was applied by the mother to her own son.
I asked [Ms A] for details about how she remitted money back to her former mother-in-law, as she had provided no material or documentary evidence at all, such as might appear consistent with engagement in a regular financial duty or commitment, say, to a lender, back in Vietnam. In particular, I asked [Ms A] if she could provide any documentary or online evidence of having paid money into an account operated by her former mother-in-law or a proxy or proxies of the latter. I asked [Ms A] to tell me specifically whose account received the loan repayments. In response, she said that she used to send the money by “money transfer”. She referred me to a service called “[Service 1]”. She said that her regular practice with [Service 1] was to deposit the money with the latter locally, whereupon [Service 1] would transmit the money to its branch in Vietnam (presumably a branch in Hai Phong, given what she said happened next). She said that when the money reaches the Vietnamese branch office, it is withdrawn as cash by one of the company’s staff members who then carries it physically to the intended recipient’s home. In this way, she appeared to indicate that she would not be able to provide evidence of the money going from a nominated bank of her own to a nominated bank account pertaining to her former mother-in-law or proxy or proxies. I asked [Ms A] to explain to me in detail who could conceivably authorise such a risk-prone method of remittance of such large amounts of money, and how it could possibly have become a preferred practice. Her response was simply that “It happens.” Essentially said it was done this way because it can be. I then asked her if she used to send money for her children’s tuition the same way and she said she did. I put to her on this information that she would therefore have no way of evidencing what money she sent to Vietnam earmarked for her children and which funds she sent specifically to repay the loan. In reply, she said she sent her loan repayments every month and the children’s tuition fees every term. Here, I mention, that she disclosed how the education institutions continued their services on a term-by-term basis: given her children’s evidently stable process through their education such that they are each at the right age to have attained what education they have received, it was hard to see how her ex-husband had ever diverted money from them to the loan. Also, if this was what [Ms A] did when she sent money by the means she was describing to me, then it hardly seemed like a practical or preferable way of getting money to the children or to their education institutions. Her evidence here struck me as confused.
I asked [Ms A] why she chose, or was limited to using, such a potentially risky method of remitting money to her children, ex-husband and former mother-in-law. Interestingly, she said that the method involved no risk as far as she could see because there had never been a mishap, and did not suggest that there was any other reason for using or having to use this method. I then put to her that it would likely have been easier and a lot safer to nominate, through a regular and reputable money transfer company, the bank account number of the intended recipient in each instance. At this point, [Ms A] said, “Not all people in Vietnam have bank accounts.” She then said her daughter only opened one after she, [Ms A], had been jailed. I asked her whether her ex-husband and former mother-in-law have bank accounts and she said they did not have them back in the time when she was sending them money. She said her former mother-in-law used to keep all her cash at home.
This evidence struck me as somewhat far-fetched in the claimed circumstances as, according to [Ms A], her ex-husband’s family and his mother in particular operated tenaciously and competitively in the business of making profit from interest. Generally speaking, money sitting at home would likely stagnate and lose value, and might easily be stolen or seized.
I located the website for the money transfer company [Service 1], which has a branch in [NSW]. I read in detail the information provided by the company about its methods of remitting funds abroad. The website confirms that a person sending money to a nominated recipient in some parts of Hai Phong has the choice of “Bank Credit … Pick Up [and] Delivery.”[5] The site names two districts in Hai Phong where “Delivery” is not an option, but there is insufficient information before me to suggest that [Ms A]’s former in-laws are limited to an address in either of them.
[5] [source deleted]
I asked [Ms A] if her husband had continued to repay any of the loan after she came to Australia. She did not answer this question on its particular detail. However, she said she had paid off the loan already. This struck me as significant new information relevant to her claimed fear of being harmed by her former in-laws and their business associates.
However, [Ms A] changed this evidence twice as the hearing proceeded. First, she said that she did not complete the repayment of the loan and that Đ50 million was still outstanding as at the time of her arret in March 2020. She went on to say she still owed her in-laws this Đ50 million and could not repay it as she is not allowed to work in Australia. However, after a one-hour adjournment, [Ms A] said through her adviser that because she had failed to finish paying that Đ50 million, her debt had blown out again at Đ9 million per month to Đ342 million plus Đ50 million, equalling a total of Đ392 million at present.
[Ms A]’s adviser said that it was plausible for [Ms A]’s family to threaten her because she had stopped repaying the loan in 2020. [Ms A]’s own claims go further than that, however, as she, albeit vaguely, claimed in 2018 that people had threatened to kill her.
[Ms A] claimed that her ex-husband’s sibling posted a death threat addressed to her on a [social media] page. She said her son and daughter had seen this and were very distressed about it. I was interested in this because the claim suggested there might be concrete evidence of a published threat by a person in Vietnam to murder another person in the event of that person returning to Vietnam, murder and published murder threats being serious criminal offences in Vietnam, according to the claims in this case generally. [Ms A] said the perpetrator of the threat was beyond doubt and yet no action was evidently taken to save or even screen-save the threat, let alone to report it to police. I asked when the threat was made and [Ms A] said it first appeared two days before the Tribunal hearing. I queried why it was only recently that this person had started threatening her on [social media] and she said that it would have taken her ex-husband’s sibling some time to find out that she was no longer in detention. This explanation did not appear to have any logical meaning, however, as the threat was purportedly delivered to an account to be read by [Ms A]’s daughter in Vietnam and therefore could have been delivered at any time. As described it appeared quite an odd one-off. Meanwhile, as discussed in the next section, [Ms A] is unable to provide a copy or printout of the alleged [social media] post.
The letter from [Ms A]’s daughter reads as follows:
My mother is a diligent woman who takes care of her family but has to endure the physical and
emotional pain caused by my father's family. My grandparents beat my mother brutally. they
said harsh words, cursed my mother such as: hitting, threatening to kill, ... at meals, it was also
not safe, she had to endure scornful, cruel eyes. Even a decent meal was not available, my
mother always cried during the meal and kept getting thinner and sick but not because of that,
my mother gave up. Mom always takes care of my two sisters and I have a full life. Not only
that, even my aunt brutally abused her mother mercilessly. When my mother wanted to start a
business, my mother borrowed a sum of 300 million VND with a very high interest rate,
because she could not pay it off, so she fled to Australia to work to pay off the debt. When she
was arrested and could not continue to pay my grandmother, my brother and I had to listen to
the harsh words of our grandparents threatening to kill my mother if she returned to Vietnam, if
my mother escaped to another place, he would find out and kill my mother so my mother could
not be in Vietnam. I don't want to be an orphan. I want a mother. My sister and I have been
separated from my mother for 8 years if something bad happened to cause me to lose my
mother I think I will not be able to live. If my mother is killed no one will take care of my
grandmother. My grandmother's family is very difficult right now. My uncle currently has no
job to support his grandmother, my grandmother is getting older and weaker, if my mother has
to return to Vietnam, she will not be able to raise her grandmother because she has no money to pay for her life. I hope the competent men and women in the immigration department are
generous enough to give my mother an opportunity to stay in Australia to work to help her
family get out of poverty and hardship.

The letter from [Ms A]’s mother reads as follows:
My family lives in a very poor rural area. I have two children: 1 boy and 1 girl. My husband
died in an accident in 1999. Since then, we had a hard time financially. My daughter [finished] [a] grade and had to drop out of school to help her family support her
education. When she was [age] years old, she got married. Her husband's family also disagree,
they strongly oppose this marriage, but my daughter and her husband still come together.
During the time she was with my husband's family, they treated my daughter too badly, cursing
and threatening her. Her brother-in-law beat her while she was pregnant and had to endure
hardship and suffering. She gave birth to her first daughter. During [age] years of being a bride,
my granddaughter witnessed her mother being beaten and scolded by her grandparents.
Until she wanted to start a business, she borrowed 300 million from my mother-in-law with a
high interest rate. She couldn't pay for her business, so she had to flee to Australia and she still
had to send money back to pay interest to her husband's parents. When they were arrested and had no money to send back, they told my two granddaughters that they would kill my daughter if she returned to Vietnam, even if she hides anywhere, she will find and kill her.
Because my family situation is too difficult and I am sick, I don't want my daughter to die
because I only have 2 children so I am making this application to beg you, your immigration
authority, to give my daughter a chance to stay in Australia.
I asked [Ms A] if she might not have been the source of some of significant parts f the information provided by her mother and daughter because she did not reside in the same household as her mother after she married and her daughter was only [age] at the time the alleged loan was made. In reply, she indicated that her mother witnessed her bruises from domestic violence perpetrated by her ex-husband and former in-laws, and that her daughter had been told about the loan and other things by the former mother-in law.
Throughout the evidence in this review application, there is some discrepancy as to the gender of [Ms A]’s sibling. I have not attached any significance to the discrepant use of “brother” and “sister” in various references to that person, as I understand that nomenclature, references to third parties and forms of address in Vietnamese can be genderless, giving rise to interpreters and translators simply taking a punt one way or another, notwithstanding that the term “sibling” is available. Similarly, I attach no negative weight to apparent confusions in the translations submitted, for example, where [Ms A]’s son is referred to as her daughter’s “sister” and where “mother” and “grandmother” appear sometimes to have been used interchangeably.
Post hearing submission
Following the hearing, I received a written submission from [Ms A] through her adviser, of which the following is an edited citation:
During the hearing on Friday 16 June, [Ms A] gave evidence before the Tribunal including:
·Her family composition
·Her children’s current education, and future educational prospects
·Why she fled to Australia
·That it was her intention to remain in Australia permanently, due to her fears for her
life in Vietnam
·How she supported herself after arriving to Australia
·When she became aware that she could apply for a Protection visa in Australia
·That she continued to make repayments on the loan borrowed from her in laws until
she was arrested in March 2020.
·That since April 2020, she has been unable to make any repayments towards the loan, and the interest owing has increased by 9,000,000 DONG each month.
·That to date, the amount owing on the loan is 50,000,000 DONG in principal, and
$342,000,000 DONG in interest (calculated 38 months x 9,000,000 DONG)
·That she is unable to repay the loan, and that there is no one that can assist her in paying off the loan
·That her children have repeatedly relayed threats made by her in laws, specifically her
mother in law, towards her, that if she returns to Vietnam, no matter where she goes
she will be killed
·That her daughter recently read a message on her sister in law’s [social media] page that
she believed was in reference to her, and threatening to kill her no matter where she
went
·That her in laws and her husband would regularly abuse her in Vietnam, and that the
police would not protect her from the abuse.
…
Suggestion that risk of family violence in past only and not in the foreseeable future
During the hearing, the Member suggested that the client has been cut loose from the family
due to her divorce from her first husband, and that the risk of family violence is in the past and
not in the foreseeable future.
It is our submission that [Ms A] continues to experience family violence despite being divorced
from her husband, and being overseas, and that [Ms A] will continue to experience family violence
if she returns to Vietnam, and that the real chance or risk of family violence is connected to
her risk of harm for not being able to repay the loan to her in laws.
It is our submission that the client remains connected to her husband’s family, irrespective of
the divorce, due to the children they share, as well as the loan she is unable to repay to her in
laws. The threat or risk of family violence is real and foreseeable into the future should she
return to Vietnam, because family violence is not a situation solely perpetrated by spouses or
de facto partners, but also behaviour that occurs in current and past family, domestic or
intimate relationships [source footnoted], and is considered violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. [source footnoted]
We further submit that under the Family Law definition of family violence, overhearing threats
of death or personal injury by a member of the child’s family towards another member of the
child’s family is considered an example of a situation that may constitute a child being exposed
to family violence. [source footnoted]
It is our submission that [Ms A] continues to experience family violence from her in laws despite
being divorced, and despite being in another country. The family violence is perpetrated
through threats made by her in laws and communicated via her children. These threats serve
to coerce or control Thi as well as bring about fear, and they are particularly cruel because
they are communicated through vulnerable members of [Ms A]’s family, her children. If anything,
these threats are heightened because they come from people who have perpetrated DFV
against [Ms A] in the past, and are using DFV to coerce or control her in the present. It is our
submission that the threats of harm should be viewed in reference to the family violence [Ms A]
experienced in the past.
[Ms A] claims that her in laws have pawn shops in at least 3 locations across the length of Vietnam, and that they hire thugs to enforce loan repayments and that based on her observations, the thugs are from areas other than Hai Phong, and their appearance and reporting suggests they are connected to gangs. Her evidence is that she has overheard the thugs reporting to her in laws refer to putting people in hospital for not repaying loans.
There is no suggestion that [Ms A]’s in laws would treat her any differently to the other customers
whom they lent money to. Indeed, [Ms A] was regularly subjected to beatings, worse than before,
after she was unable to keep up with interest payments on the loan while in Vietnam. Their
long history of abuse towards her does not lend to any other finding.
Cumulative effect of claims
[Ms A]’s risk of harm by her in laws, in their roles as loan sharks, must be viewed in light of the
fact that these are the same people who have perpetrated family violence against her for over
a decade, before she finally fled to Australia. They have shown [Ms A] that they are callous, cruel
people not only towards her, but towards others whom they have lent money to and have been
unable to pay, and that they have connections across Vietnam with thugs who commit violence
on their behalf against people unable to repay loans. The risks of harm that [Ms A] faces interact
and interrelate with one another, and therefore require the Tribunal to consider her circumstances cumulatively. [source footnoted]
[Ms A]’s evidence is supported by country information we have previously provided and we have
summarised some of it below:
·Domestic and family violence is extremely prevalent in Vietnam and supported by a
highly patriarchal society and strong social gendered expectations of what is and is not a “good wife,” and that DFV is often considered to be the fault of the victim;
·The police do not take reports of DFV seriously, either ignoring or dismissing reports,
encouraging victims to “solve their problems within the family,” or encouraging
reconciliation;
·Loan sharks or illegal moneylending is prevalent in Vietnam;
·Many illegal moneylenders do not require collateral for borrowing arrangements and
it is not uncommon for loan agreements to be verbal only with nothing recorded in writing;
·Many illegal moneylenders charge exorbitantly high interest rates, and the
repercussions of being unable to repay a loan to a loan shark can include violence,
threats aggressive behaviour and strong-arm recovery methods, and can be carried out by hired thugs;
·The threat of harm is not localised, and in fact relocation does not mitigate the risk of
violence towards [Ms A] because she has borrowed money from a gang, and because gangs in Vietnam have been reported to have national and international reach, and the threat of violence “could exist in different parts of the country.”
·Police protection is ineffective for both victims of DFV as well as victims of loan
sharks and illegal moneylenders, and that as a victim of both from the same perpetrator, there is a real chance the police will not take the threats to her life seriously, and dismiss the threats as family related;
·[Ms A] will also suffer from discrimination including stigma as a woman who is divorced
in Vietnam, which will affect her ability to find work and accommodation. It is not
farfetched to conclude that [Ms A] ’s divorced status will further add to the police’s
dismissal of the threats to her life.
It is our submission that [Ms A]’s claims are supported and substantiated by reputable country
information and she faces a real chance of persecution, and/or a real risk of significant harm,
if she returns to Vietnam. The chances of being seriously and/or significantly harmed by her
in laws and/or their hired thugs, and receiving ineffective protection from the state, is
substantial, and not remote or far-fetched possibility. [source footnoted] [Ms A]’s fears of persecution are not merely assumed or speculative, [source footnoted] and are grounded in her past and present personal experiences, as well as the substantive country information supporting her claims.
[Ms A] cannot take reasonable steps to modify her behaviour so as to avoid a real chance of
persecution because her claims relate to her gender, and therefore 5J(3) does not apply.
The reasons [Ms A] fears persecution, being for her memberships of particular social groups as
described in our last submission, are the essential and significant reasons for the persecution,
and the persecution involves serious harm to [Ms A]. It is further our submission that the
persecution is systematic and discriminatory towards [Ms A].
Accordingly, [Ms A] is a person in respect of whom Australia has protection obligations and
satisfies the criteria in s 36 of the Migration Act.
Thank you for considering the submissions we have made in support of this matter.
Omitted from the above citation is a lengthy argument suggesting that I would be straying into legal error by asking a particular question raised during the hearing. The question I asked was just that: a question; and I was interested to hear [Ms A]’s response.
I am surprised that the post-hearing submission continues to press claims about [Ms A] fearing discrimination or worse due to being a divorced woman. I am certain that she abandoned all such claims at the hearing when she said she was not at all worried about the “divorced woman” factor.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220 .
[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[8] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[9]
[8] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[9] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that [Ms A] used to live in Hai Phong with her husband, two children, mother-in-law and sister-in-law. I have taken into consideration that [Ms A]’s is a person with little education, no qualified skills, no English when she arrived in Australia, and possibly little to no English now. I accept that she has had only quite local participation in the Vietnamese economy, working mainly in small scale family ventures. Her suggestion that she was taken into, or taken on by, an [company] so that she could take advantage of the company’s plan to conduct a group “holiday” abroad does not suggest to me that she worked in any meaningful capacity for such a company.
Before continuing, it might be helpful for me to recapitulate directly the stated reasons for [Ms A]’s claimed unwillingness or inability to avail herself of the protection of Vietnam, being, in her terms, a fear of being persecuted on the basis of her membership of “particular social groups” that were characterised in her pre-earing submission:
·People who have borrowed money from loan sharks, pawnbrokers and/or gangsters
·Women who have been victims of domestic and family violence from their families
·Women who are at risk of domestic and family violence (DFV)
·Single and/or divorced women
The first characterisation above is capable, in principle, of constituting a particular social group because it involves a common and cognisable characteristic. However, in my view, it does not accurately reflect [Ms A]’s claimed circumstances, because she claims fear of harm on the basis of not being able to expiate her debt. It would be more accurate to characterise this group as “People in Vietnam who have defaulted on loans from loan sharks, pawnbrokers and/or gangsters”. However, that brings into discussion whether the group is defined by what it is or what its notional members do, or fail to do.
Australian Courts have emphasised that the primary focus of this Convention ground is on what a person is -- a member of a particular social group -- rather than what a person has done, or may do, or possesses. However, the Courts have also emphasised that this distinction should not be taken too far.
In Morato v MILGEA Black CJ stated:
It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is ‑ a member of a particular social group ‑ rather than upon what a person has done or does.[10]
[10] Morato v MILGEA (1992) 39 FCR 401 at 404.
It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group.[11]
[11] Morato v MILGEA (1992) 39 FCR 401 at 405.
His Honour acknowledged, however, that the part played by acts done, or assumed to have been done, by those who are said to constitute a particular social group can give rise to difficult questions and that the activities of the members of an asserted group are not necessarily irrelevant:
It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. There may be such an interaction in a particular society that a group of people becomes a cognisable element within the society by virtue of their common activity. Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group. But all this is far removed from the present case where acts, without anything at all more, are said to define a particular social group.[12]
[12] Morato v MILGEA (1992) 39 FCR 401 at 406.
In Applicant A v MIEA, Dawson J noted that, as Black CJ had recognised, the distinction in Morato between what a person is (a member of a particular social group) and what a person has done or does should not be taken too far. His Honour pointed out that the distinction may sometimes be unreal, or may be appreciable but not illuminating:
The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts - that the persons involved are parents - is quite central to what they are.[13]
[13] Applicant A v MIEA (1997) 190 CLR 225 at 242–243.

Nevertheless, as Burchett J explained in Ram v MIEA, if harmful acts are done purely on an individual basis, because of what the individual has done or possesses, the application of the Convention [refugee criterion] is not attracted, so far as it depends upon “membership of a particular social group”. His Honour illustrated the point by reference to “textbook” examples from history:
In the infamous Reign of Terror during the French Revolution, men, women and children were guillotined because they belonged to a class seen as dangerous to the emerging democratic State. Similarly, in Cambodia under Pol Pot, teachers, lawyers, doctors and others who were seen as having, by their education and status, a capacity to influence public opinion, were regarded as potentially dangerous to the new order, and were therefore eliminated. ... In neither case was the motivation what a particular individual possessed or had done. ... The fact is that it was the whole class which, in each instance, was attacked. Individuals were not persecuted for what they had done as individuals, nor for what they possessed as individuals.
When the linked ideas expressed by the definition of a refugee come to be applied to less clear examples, it remains important to keep steadily in mind the essential unity of the conception. ... When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group.[14]
[14] Ram v MIEA (1995) 57 FCR 565 at 568–569.
Ultimately, whilst in some instances what a person does can be relevant to determining whether that person belongs to a particular social group, the issue is the identification and characterisation, for the purposes of the applying s.5J(1)(a) of the Act, of the social group to which the person is said to belong.[15]
[15] Pepaj v MIMA (Federal Court of Australia, Merkel J, 25 November 1998) at 5. Note that the is/does distinction is particular to this refugee ground, which focuses on the term ‘membership’, and is very likely to lead to legal error if brought to bear in relation to the other grounds.
On a fair reading of [Ms A]’s claims, I do not agree that she is claiming fear of being persecuted for reasons of being a member of a particular social group characterised as “People who have borrowed money from loan sharks, pawnbrokers and/or gangsters”. Also, on the evidence before me, the harm she claims to fear is induvial harm from an individual lender and her associates for reasons of something she, as an individual, has done or failed to do.
The second and third characterisations cancel themselves out, as it were, because each is defined by the harm purportedly feared. It is well established in Australian case law that a particular social group cannot be defined by the fear of persecution. S.5L(d) of the Act incorporates this principle as one of the mandatory requirements for establishing the existence of a particular social group.
The fourth particular social group above does not have a form of harm as its common characteristic is “Single and/or divorced women”, and is not affected by the “is/does” issue, but [Ms A] told me plainly at the hearing that she is not worried about her status as a “single” or divorced woman, and then drew my attention back to her claims regarding the purported Đ300 million loan.
Meanwhile, as to [Ms A] being vulnerable to domestic violence in future, there is the evidence of her former husband having consented to a divorce, which means that [Ms A] has left the household and, as the agreement to divorce argues, she has been allowed to leave it. All of this makes it to characterise any future violence from [Ms A]’s ex-husband or members of his family as “domestic violence”, particularly since [Ms A] has emphasised that the violence with which she has been threatened is loan-related and in the nature of gang-related and loan shark behaviour, notwithstanding that there are family members allegedly involved.
Having considered whether [Ms A]’s claims have any nexus with s.5J(1)(a) of the Act, I am not satisfied on the information before me that they do.
In addition to the above findings, I conclude on the evidence before me that [Ms A] is not a reliable witness in this matter.
The concerns I expressed earlier as to the quality and character of [Ms A]’s evidence regarding her migration history begin with her acquiring a passport in May 2015 that she did not use for travel out of Vietnam until seven months later. The time taken does not help to show that she was in a hurry to escape anything there. She claims she joined [a company] in mid-2015 because it offered to take her on a holiday six months later. She claims the [company] handled absolutely everything to do with her visitor visa application and still left her with A$1,000 of her own spending money. She claims she profited and progressed in Australia within days of arrival, though with no English at all, thanks to the timely and apparently gratuitous intercession of friends and other people she hardly knew, if at all: friends; friends of friends; a brother of a friend; the landlord of the brother of the friend; an employer, who was acquainted with the landlord of the brother of a friend, who was able to take her on within weeks of her arrival here. She claims she only found out about the existence of PVs in the Australian migration regime from a “friend of a friend.” As observed earlier, by her account she had an extraordinary run of a great deal of unalloyed good luck, during which she proceeded apparently without fear of anyone involved or any distrust towards them, notwithstanding she claimed to have lived for years surrounded by relatives who only ever exploited and beat her. Looking at all these events cumulatively, and allowing that one or two might, though not, might be generally plausible on their own, it is hard to believe that they all happened to the same person within mere weeks and months.
In particular, I consider it far-fetched, on the information before me, that [Ms A] was invited to work for [a] company by a person who worked there and who told her this would be a good way to escape Vietnam because, in half a year’s time, the company would be taking a group holiday there. I am confidently of the view that this story is a complete fantasy. It does not sit with [Ms A]’s claim to have been trying to escape secretly from Vietnam to escape day-to-day domestic violence at the time she obtained her passport in May 2015. Ultimately, I do not believe that [Ms A] worked for any [company], whether or not such employment was claimed in her visitor visa application. Also, I do not believe that [Ms A] had never signed anything before signing her visitor visa application, as she produced a copy of her passport with her signature to the Department. I find that that is indeed her signature as it matches the one in her PV application. Because I do not believe [Ms A]’s account of how she obtained her visitor visa, in particular her claim to have had no idea what she was signing whenever she signed it, I have doubt regarding related claims such as the one about her having departed Vietnam without her family and in-laws knowing.
The timeliness and ease with which [Ms A] departed Vietnam, her having to do little or nothing on her own part to assist in the process of obtaining her visitor visa for Australia, and her extremely rapid access to accommodation strikes me as being not inconsistent with her having signed up with a fraudulent operation offering opportunities for Vietnamese nationals to live and work, mid- or long-term, in Australia. I am all the more confident in this view given how rapidly she was directed to accommodation and illegal employment upon her arrival here, and given what I consider to be the implausibility of the evidence about the man who took her to live in his house and who then moved out immediately. It is not unlikely that all these arrangements came at a cost that was initially lent to [Ms A], or covered temporarily on her behalf, and it is not unlikely that she would have been required to repay that cost from the proceeds of her earnings in Australia. As to any ongoing cost outstanding, I give weight to [Ms A] having told me straightforwardly during the hearing that she had already paid off her debt in Vietnam.
I accept that [Ms A] did divorce her husband in 2019. However, having already found [Ms A]’s evidence problematic in different respects, I do not accept that [Ms A] announced to her husband that she wanted a divorced as soon as she arrived in Australia in January 2016. This is because she told me that the only reason she sought to divorce him was to access permanent residency, after being told some later time by Ms [B] about the “marriage” option.
Because I do not believe [Ms A] asked for a divorce in 2016, it follows that I have problems with the suggestion that her husband refused her request (over and over for three or four years?) until she undertook to continue to repay the loan described in her claims.
I find on the evidence before me that the only reason [Ms A] divorced her husband was to enable herself, as far as she understood, to marry in Australia so that she could obtain permanent residence. Her claim about continuing to support her husband financially, at least up to 2020, leads me to conclude that the divorce was pragmatic and resolved at least partly on an expectation that [Ms A] would be able to support her children back home by sending money to their father, which I accept she did via [Service 1] in the manner claimed. The evidence in this case indicates that the money [Ms A] sent for her children generally went where it was intended. They have evidently had uninterrupted educations, respectively, and their future learning and occupations are evidently open to choice. The life of the son, who lives with [Ms A]’s ex-husband is “normal”. On the evidence before me, I find [Ms A]’s claims about the money being directed and used by her husband for purposes other than explicitly intended, being to raise and educate their children, are unreliable claims.
The only evidence supporting [Ms A]’s claims about her having borrowed Đ300 million from her former mother-in-law who was also an unscrupulous loan shark is in the form of brief references to the loan in the letters from her mother and daughter. I shall discuss these letters further below. Meanwhile, according to [Ms A] there was nothing written down, as far as she knew, by any party about the loan, which is not necessarily implausible on its own. Whereas independent reporting argues that private loans often involve much less in the way of collateral, guarantees or nominated forfeit in the event of default, not one condition of any kind, except for a calculation of the interest, was placed on the lending of the money in this case. [Ms A]’s evidence about who carried the burden of the loan is inconsistent to the extent that she sometimes but not always said she alone carried it, as she told me her husband also shared it at least for several years. Whereas the [Service 1] company does physically deliver remittances to certain areas in Hai Phong, [Ms A] has had several years in which to provide evidence of the remittances made at her end and evidence as to whom the money was being sent, but no such material has ever been offered to the Tribunal, the only supporting material being short mentions in letters very recently written by two close family members.
I am prepared to accept that [Ms A] borrowed some money from her husband’s family. I am not satisfied on the evidence before me that she borrowed Đ300 million from a loan shark who was also her then-mother-in-law. I find on the plain statement she made at the Tribunal hearing that she has repaid all she borrowed. I find that a later attempt to suggest she still owed Đ50 million and, later than that, to say the debt had ballooned to around Đ390 million, were both improvised revisions of her declaration at the hearing about already having paid off her debts. Meanwhile, on the evidence before me, I consider it far more likely and far more plausible that if [Ms A] borrowed any money in Vietnam, it was so that she could be brought to Australia in an operation specialising in connecting Vietnamese nationals with illegal, and likely untaxed, work abroad.
Essentially, I find that [Ms A] is an unreliable witness in this matter, even after putting entirely to one side her claimed inability to state, more precisely than she did, where she worked and who employed her after her arrival in Australia. I do not believe her mother-in-law ever lent her money at a usurious rate. I do not accept that any member of her ex-husband’s family, or any associate of the latter, has ever threatened to kill her. As discussed, her evidence of a having been married to a coercively controlling husband who she set about trying to divorce from the time she arrived in Australia is inconsistent with other evidence about how the divorce came to be suggested to her and about how her husband dealt with it. It is also inconsistent with her oral evidence about her husband sharing half the burden of the purported loan at least for the first four years up until the time she left for Australia.
I do not accept on the evidence before me that [Ms A]’s ex-husband’s sibling (usually identified in translation as his sister) published anything interpretable as a death threat on [social media], let alone for the first time since [Ms A] purportedly stopped paying off the purported loan described in her claims. It follows that I do not accept that the alleged message was taken down. I consider this whole claim a recent invention. In view of these findings, I do not accept the claim about that sibling having been violent towards [Ms A], such as by pushing her down a staircase.
In view of finding [Ms A] an unreliable witness in the present matter, I give no weight to the letters from her daughter or her mother. The additional signatures of her son and brother in the respective letters do nothing to alter my conclusions on this material. In addition, the letter attributed to [Ms A]’s mother contradicts [Ms A]’s own evidence at the Tribunal hearing where it says that [Ms A] fled to Australia because she could not meet financial obligations. According to [Ms A]’s own oral evidence, she was able to meet these purported obligations with her husband meeting half of the burden.
I am not satisfied on the evidence before me that [Ms A] faces any harm in Vietnam from loan sharks or former family members/in-laws, or people she has described as being both, or associates or networks of such people. I find that the loan claims in this application are false claims.
I am not satisfied on the evidence before me that [Ms A] faces a real chance of potentially significant, relevant harm in Vietnam for reasons of being a “single” or divorced woman.
I am not satisfied on the evidence before me that [Ms A] faces a real chance of suffering “domestic violence” in Vietnam in the reasonably foreseeable future.
One possibly implicit claims that arises out of the material before me is whether [Ms A] might face re-prosecution for reasons of being a person convicted of a crime whilst abroad. Relevant to this, DFAT, in a report[16] submitted by [Ms A] through her adviser, observes:
5.11 Double jeopardy would occur when a Vietnamese citizen is charged and convicted with a crime in another country, and then returns (or is returned) to Vietnam and is prosecuted for the same crime. Article 6 of the Penal Code gives broad extra-territorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law. In-country sources have told DFAT that the provisions may only apply theoretically. DFAT is not aware of cases of double jeopardy in practice.
[16] DFAT Vietnam : Country Information Report, 11 January 2022
I am not satisfied on the information before me that [Ms A] faces a real chance of being re-prosecuted in Vietnam over the offence punished in Australia.
Another potential claim, though one which does not appear to rise on the material before me, involves the question as to whether [Ms A] might be persecuted for having sought asylum in Australia. Relevant to this, the DFAT report submitted to the Tribunal by [Ms A], observes:
5.29      Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30      In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31      DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32      Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33      Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans ... Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34      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.
5.35      DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in … the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries ...

[Ms A]’s passport was duly stamped on departure from Vietnam. Nothing before me suggests that she left Vietnam unlawfully. The country information indicates only a remote chance of a former asylum seeker facing discrimination In Vietnam. Some of the evidence in this case, including [Ms A]’s own clams about her travel here in a group having been organised by a commercial enterprise, could easily leave an impression that that she may have been trafficked into illegal work here; more relevant though is the independent observation about trafficked persons not being regarded as criminals. On the evidence before me I am not satisfied that [Ms A] faces a real chance of being persecuted in Vietnam for reasons of having sought asylum abroad.

100. Having considered all of the evidence before me in its entirety, I am not satisfied that [Ms A] faces a real chance of being persecuted in Vietnam for any reasons cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.
101. For the reasons given above, the Tribunal is not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s 36(2)(a). ).
Findings in relation to s.36(2)(aa) of the Act
102. Having concluded that [Ms A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. Relevant to this, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
103. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
104. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
105. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
106. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
107. Accepting that Ms [A] is a national of Vietnam, I find that Vietnam is the receiving country in this matter.
108. [Ms A]’s claims to complementary protection are essentially the same as her refugee claims. Those claims have failed for want of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [Ms A]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
109. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Vietnam, there is a real risk that [Ms A] will suffer significant harm as exhaustively defined under s.5(1) of the Act. Accordingly, I am not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions

For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore she does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that she is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 2521

28 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction