2009441 (Refugee)
[2025] ARTA 1158
•20 March 2025
2009441 (Refugee) [2025] ARTA 1158 (20 March 2025)
Decision and Reasons for Decision
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2009441
Tribunal: General Member M Bailey
Date: 20 March 2025
Place: Brisbane
Decision: The Tribunal affirms the decision under review
Statement made on 20 March 2025 at 3:33pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – fear of contracting the coronavirus – business and personal commitments – health issues – close relationship with an Australian permanent resident – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
Statement of reasons
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 4 June 2020 to refuse to grant the applicant a protection visa under
s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 February 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 19 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
BACKGROUND
The applicant, [an age]-year-old male, arrived in Australia as the holder of a [Student] visa [in] January 2014.
The applicant presented his Vietnamese passport to the Department of Home Affairs (the Department) in support of his protection visa application. The delegate accepted the applicant to be a citizen of Vietnam. Based on the available evidence, I find that the applicant is a citizen of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his claims for protection.
CLAIMS AND EVIDENCE
Evidence before the Department
According to the protection visa application, the applicant was born and resided in Ha Tinh Province, Vietnam. His religion is Catholic. His parents and [specified family members] reside in Vietnam. He has never married. He has never studied or been employed.
Regarding his claims for protection, he stated that currently coronavirus is affecting northern Vietnam, including his home area. He did not experience harm in Vietnam. If he returns to his home area in Vietnam, there is a high chance that he will be infected with the virus. The government is hiding the infection figures and there is no vaccine for the virus.
The applicant was not invited to attend an interview with the Department. The delegate found the applicant’s claims to not relate to any of the reasons in s 5J(1)(a) and the harm feared to not amount to any of the types of significant harm defined in s 36(2A) of the Act.
Evidence before the Tribunal
Pre-hearing evidence
In a completed ‘Response to hearing notice’ (Hearing response) the applicant requested the Tribunal take witness evidence from his employer, ‘[Ms A]’, who is an Australian permanent resident. A 2-page written statement dated 11 March 2025 from [Ms A] was provided describing how she came to know the applicant in 2017 and their subsequent development of a close relationship as friends and work colleagues. In 2021 she opened her own business, which provides employment to the applicant and several others. Due to recent health issues, she has become increasingly reliant on the applicant to operate her business
and assist with her medical care. She attests to the applicant’s good character and requests that his ‘permanent residency’ be expedited. Documents relating to [Ms A’s] business and personal commitments and health issues were submitted.1
Oral evidence at hearing
The applicant confirmed that he completed the protection visa application himself and is aware of the content.
Regarding his circumstances in Vietnam, he stated that he resided in Ha Tinh other than a period of 3 years while attending college in Hue. His parents and [one sibling] continue to reside in Ha Tinh. His [other siblings] are currently living in [Country 1]. He has never married and has no children. He worked in Vietnam selling [specified] products. He came to Australia to study business but due to financial issues, did not complete his studies. He currently works for [Ms A] in a [business 1].
Asked whether he continues to fear returning to Vietnam due to the coronavirus, as claimed in his protection visa application, he stated that he no longer fears this because there is now a vaccine.
Asked why he is unable to return to Vietnam, he described his close friendship and working relationship with [Ms A]. They currently live together, and he considers her like a sister. [Ms A] relies on him to manage her business and assist with her medical care given her current health issues. She has no relatives in Australia. Asked whether there is any other reason he would be unable to return to Vietnam, he stated no, it is only that he does not want to leave [Ms A] alone and without support.
I discussed with the applicant the requirements to satisfy the refugee and complementary protection criteria. While I accepted his evidence regarding [Ms A], I may not be satisfied that this is relevant to my assessment of whether he would face harm in Vietnam. The applicant responded that he would not face any harm in Vietnam but hopes the Tribunal can make an exception and allow him to remain in Australia to care for [Ms A]. I explained to the applicant that my assessment is limited to assessing whether he would face a real chance of persecution or a real risk of significant harm in Vietnam. The applicant indicated that he understood and had nothing further to add.
Regarding the request in his Hearing response that the Tribunal take oral evidence from [Ms A], I confirmed with the applicant that I did not consider this necessary as I accepted the entirety of his evidence regarding [Ms A]. The applicant agreed that [Ms A] would not be able to provide any additional evidence of relevance to my assessment.
FINDINGS AND ASSESSMENT
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons I have concluded that the decision under review should be affirmed.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the
Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one
1 Copies of several Vietnamese identity documents were also submitted to the Tribunal prior to hearing. When questioned about these at the hearing, the applicant stated that he does not know who these documents relate to and was unsure why they had been submitted. He confirmed that they were not relevant to his claims.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.
Considering the applicant’s evidence to the Tribunal that he no longer fears harm in Vietnam due to the coronavirus, I have not considered these claims further.
I accept his evidence to the Tribunal regarding his relationship with [Ms A] and her reliance on him as a business manager, friend, and carer to be credible. However, as discussed with the applicant, this is not relevant to my assessment of whether he would face persecution or significant harm in Vietnam. Based on his evidence to the Tribunal, I find that the applicant has not raised any claims to fear harm in Vietnam and I am satisfied that none arise on the facts.
Considering the above, I am not satisfied there is a real chance that the applicant will face any harm in the reasonably foreseeable future on return to Vietnam. I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.2 For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal to Vietnam.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 19 March 2025
2 MIAC v SZQRB [2013] FCAFC 33
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
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
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