2011999 (Refugee)
[2025] ARTA 1309
•5 May 2025
2011999 (REFUGEE) [2025] ARTA 1309 (5 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2011999
Tribunal:General Member J McLeod
Date:5 May 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 05 May 2025 at 10:43pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – Australian citizens daughters – sole caregiver for two non-Vietnamese citizen children – no meaningful or practical support network in Vietnam – member of particular social group – single mothers in Vietnam – single mothers of illegitimate children in Vietnam – mothers of children with foreign nationality – societal discrimination – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 367, 499
Migration Regulations 1994 (Cth), Schedule 2
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.
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 on 14 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, arrived in Australia on a subclass 679 visa in March 2011. This visa ceased the following month, and the applicant lived unlawfully in Australia until she applied for a protection visa on 29 October 2019, and was granted a Bridging Visa C.
In her protection visa application, the applicant raised claims about a lack of various freedoms in Vietnam and engaging in anti-government political activities both in Vietnam and Australia which had already resulted in consequences for her family. The delegate, relying on the information given in the application form and country information, found that the applicant did not meet the refugee or complementary protection criteria and on 14 July 2020, refused the grant of visa.
On 22 July 2020, the applicant lodged a review application with the (then) Administrative Appeals Tribunal (now the Administrative Review Tribunal or ‘the Tribunal’).[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 7 March 2025 the applicant appeared in a hearing before the Tribunal, in which we were assisted by an interpreter in the Vietnamese and English languages. It was readily apparent in the hearing that the applicant had no awareness about protection visas or that she had applied for one; she said she had simply followed someone’s advice to lodge an application for a visa that would allow her to continue living in Australia. She confirmed that the claims regarding fearing return as set out in her application form were not her own. She discussed with the Tribunal her real fears for returning; these are discussed below.
Ultimately, having considered the credible claims raised by the applicant at the hearing and claims and issues which clearly arose on the material, the Tribunal has determined that the applicant meets the refugee criteria in s 36(2)(a) as it is satisfied that she has a well-founded fear of being persecuted in Vietnam. Therefore, the Tribunal has concluded that the applicant’s case should be remitted for reconsideration.
CRITERIA AND MANDATORY CONSIDERATIONS
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application form
In her protection visa application lodged in October 2019, it was raised that the applicant left Vietnam because when she had been a student in Vietnam, she had been aware of their Communist Laws and their lack of rights to raise opinions about changing or promoting democratic or human rights, given it was against their political system. It was raised that she was part of a group of young students who agreed to fight peacefully for their freedom of speech, democratic rights and human rights throughout the country. On many occasions she was hit by school management who informed on her to her parents. She also fought the local authorities, but they threatened her parents and ‘financially distortion’. She worked doing self-labour contracts and was affected by the local authorities because her family often opposed their policies and demanded change. Her family became scared and mental issues arose. She saw no hope in the communist country and sought travel abroad, where she could study skills and have freedom of speech, human rights and democratic rights in a western country such as Australia. She also referred to not having freedom of religion.
It was indicated in this form that the applicant had experienced harm in Vietnam. It was raised that her family had been threatened with jail for opposing government policies. Many other citizens had also been jailed just for fighting on [social media]. They have also been expelled from class and banned from entering class, for spreading anti-state policies. These issues were described as ‘no joke’ and serious issues.
It was raised in the form that the applicant did not seek help because there was no hope. Her communist country was being run the same way throughout and citizens opposing them would arrested and/or banned from moving around. This is also why she didn’t try relocating within Vietnam, and because there were corrupt officers in all levels of the authorities, even if tourists don’t see it.
It was raised in the form that if the applicant returns to Vietnam, as a mature person who strongly supports the opposition party (whose head office in Australia is in Sydney) who fight against the current Vietnamese regime and demand more parties, and to have democratic elections, returning would be the end of her actions. She would have to sop her spreading of democracy and human rights for Vietnam and her family there might be further threatened and would surely be ‘financially corrupted’.
Supporting documents / Interview
The applicant provided to the Department evidence of her identity, including a copy of her passport. She was not invited to attend an interview with the Department. The decision on her case was made on the papers.
Delegate’s decision
The delegate considered the country information relevant to political activity in Vietnam and protest activity in Australia, and religion, but found the information did not support that the applicant would face a real chance of harm if she returned to Vietnam. The delegate also noted the applicant’s ‘financial distortion’ reference but lacking evidence that the applicant would be unable to subsist and having regard to country information about the Vietnamese economy, the delegate found the applicant would not suffer a real chance of serious harm, nor a real risk of significant harm if she returned to Vietnam.
Claims and evidence on review
At the Tribunal hearing in March 2025, it was readily apparent to the Tribunal that the applicant was entirely unaware that the proceeding related to a protection visa application. She had no awareness of protection visas or that he had applied for one. She had just followed someone’s advice to lodge an application for “a visa to continue living here”. She was referred by others to the person that helped her, but she only spoke to them by phone, and they handled everything. She did not know what information was actually included in the form.
The applicant was surprised to learn of the political and other claims raised in her application form. She confirmed to the Tribunal the following: She has never been involved in any political group as a student or otherwise, had never been involved in any protests and had never sought to express her opinion against the Communist Party of Vietnam (CPV). She never faced any problems from the local authorities and her parents were never threatened. No one in her family had ever been in trouble for opposing the government and there was no history of mental health problems in her family. She never faced any problems at school, though she never studied past [a grade]. She has never been politically active – in Vietnam or Australia. She has no opinion of the Vietnamese government. She would have no reason to protest or oppose the Vietnamese government.
When asked about the claims in her form regarding corruption in Vietnam, the applicant spoke instead about problems she faced in Australia. When asked if she is concerned about the lack of freedoms in Vietnam, she said she was uncertain about it. When asked if she has any concerns relating to the CPV, she said she has been in Australia a long time since 2011 and she doesn’t know the current situation there. When asked about her religion and ethnicity, the applicant said she doesn’t follow any religion and wasn’t raised in one, and she doesn’t know her ethnicity or ethnic group, as no one ever talked about it while she was growing up.
The applicant told the Tribunal that her real worries about returning to Vietnam stemmed from not being able to care for her children and them not having anyone to look after them. She also raised concerns about their not having the opportunities for education. She also raised concerns about how single/unwed mothers are viewed and treated in Vietnam and being able to find work. She raised fears about not having any house or land or financial means, or any accommodation or place to live there. She also raised concerns about the children receiving government support in Australia but not in Vietnam. She also worried about her children adapting to life in Vietnam.
The applicant’s children, her two daughters aged [age] and [age] attended the hearing with her. She confirmed that both children were born here in [year] and [year] and that they have both been Australian citizens since birth, their separate fathers both being Australian citizens. The applicant has sole custody of the children and is their sole carer. Neither of the girls’ fathers are in their lives. The only thing she knows about the older daughter’s father is that he lives in Sydney. The younger daughter’s father actually lives in their area but has shunned them. He left them when she was [age] old and took up a new relationship. He was angry about her being a daughter rather than a son. He pretends not to notice them even when they pass each other on the street.
The applicant herself came to Australia from Vietnam in 2011 and has not left Australia in all this time. When asked about what she was doing between 2011 and when she applied for the protection visa in 2019, she said she had had her first daughter and experienced financial hardship, needing to be helped by others so she could work to earn money for them. She initially worked on various farms but in 2018 came to Melbourne where she has been working as a casual day labourer as needed in different [jobs]. She has been also caring for her daughters. They rent a room in a share house in Melbourne’s west. They do not receive any support from the girls’ fathers.
The applicant told the Tribunal she had been previously married in Vietnam. She has never remarried, and she is not now in a relationship.
When asked about the prospect of returning to Vietnam, the applicant said she could not imagine it. It has been so long since she has been in Australia; her children would not have anyone to look after them if she returned.
When asked where she would live in Vietnam if she returned, she said she doesn’t know. She indicated she had little family in Vietnam and the only person has contact with is her elderly mother who is now approaching [age] years old and lives in the countryside in Ca Mau province. The applicant has described her as frail and said she knows about her granddaughters but doesn’t speak with them. The applicant’s parents divorced when she was very young, and she has had no relationship with her father for a long time. She does not have any siblings, nor aunts, uncles or other family members. She does have a grown-up son, but he cut ties with her over the birth of her daughters. She does not have any friends in Vietnam.
When asked about her childhood, she said it was very poor and she had only attended school until [a grade]. Ca Mau province is the only place she has ever lived. Before coming to Australia, she had worked in [farming].
The applicant stated that if she returns to Vietnam, she will not be able to look after her children. She has managed to get casual work here, but she will not be able to find employment or have any other means of finance and no house or land or accommodation or place to live. She will have nothing. The children can also access government support in Australia, the implication being that that would not have such access in Vietnam.
When asked if the children would go with her if she returned to Vietnam, she said she didn’t know and said they have only known life in Australia and have never been overseas, and they would not be able to adapt to life in Vietnam. She has sole custody of and is the sole carer for the children and she said she does not know if their fathers would have a problem wit them going to live in Vietnam. She said their fathers did cooperate with her in obtaining passports for the children, but the reason for them getting passports was so that she had reliable identity documents for the children and would not need to contact their fathers, which was always very difficult.
The Tribunal observed that the applicant was a single mother and asked what she knows about life for single mothers in Vietnam. She said that in the past it was rough, but she doesn’t know the present situation. She indicated she doesn’t know how they are viewed or treated in Vietnamese society, but she knew that people who were unmarried or had children out of wedlock are looked down upon and this concerns her.
REASONS AND FINDINGS
Credibility
The Tribunal has no credibility concerns with the applicant’s claimed identity and background, nor with her claims and evidence as told to the Tribunal. While the claims included in her written application were not her true claims, the Tribunal accepts the applicant’s explanation about how her visa application (which she had believed simply to be for ‘a visa to continue living here’) was prepared and lodged and it draws no adverse inference pursuant to s367A(2), or otherwise, on the basis of these previously submitted false claims, or the fact that she didn’t raise her true claims until the Tribunal hearing.
It must be said that the applicant was neither forthcoming with detail nor articulate at the Tribunal hearing but rather than this being a credibility concern or indicating a lack of subjective fear about the prospect of return, the Tribunal considers it was demonstrative of the applicant’s low level of education and lack of awareness of the visa process, and of the administrative complications her family circumstances having non-Vietnamese citizen children may present for her in Vietnam. As such, while this assessment reflects her true concerns, the Tribunal has also considered relevant factors which were not clearly expressed but which clearly arose on the material and the country information.
Identity / Background / Receiving Country and s36(3)
Based on the applicant’s oral evidence at the hearing, her documentary evidence including her own identity documents and the identity documents of her daughters’ which refer to the applicant as their mother and to the applicant’s place of birth in Ca Mau, Vietnam, the Tribunal accepts the applicant’s identity and profile is as a claimed. The Tribunal finds that the applicant is a Vietnamese citizen and that her profile and background are as told to the Tribunal and set out in the ‘Claims and evidence on review’ section above.
The Tribunal finds that Vietnam is the receiving country for the purpose of this review.
There is no evidence indicating the applicant has any other citizenships or a right to enter and reside in any other country. The Tribunal finds on the evidence that she does not. The Tribunal finds that s 36(3) does not apply in the circumstances of this case.
Citizenship of the applicant’s children
The applicant’s children were both born in Australia, to the applicant and different fathers who are noted on the children’s birth certificates as themselves having both been born in Vietnam. However, the applicant states that their fathers are Australian citizens, and that her children have been Australian citizens since birth, and at the hearing, she provided the children’s Australian passports for the Tribunal’s inspection. Copies of these are now on file.
Under Vietnam’s Article 16(2) of the Law on Vietnamese Nationality (‘2008 Nationality Law’)[2] in situations involving children born outside Vietnam where one parent is a Vietnamese citizen, and the other is a foreign national, the parents must agree in writing at the time of the birth registration, that the child is a Vietnamese national, for the child to be a Vietnamese national.[3] The Tribunal is not satisfied this occurred with either of the applicant’s children.
[2] Law on Vietnamese Nationality (‘2008 Nationality Law’) (No 24/2008/QH12, 2008) (Vietnam) (‘2008 Nationality Law’)., available accessed 5 May 2025
[3] Law on Vietnamese Nationality (‘2008 Nationality Law’) (No 24/2008/QH12, 2008) (Vietnam) (‘2008 Nationality Law’)., available accessed 5 May 2025
Under Australian law, the children’s birth certificates (the originals of which were also sighted by the Tribunal with copies placed on file) and proof of citizenship would have been required as part of the passport application and issuance process. The Tribunal has no concerns about the authenticity of the children’s passports, or the applicant’s claims about her children’s citizenships. The Tribunal accepts that the children are Australian citizens. It accepts that having one Australian citizen parent, they were Australian citizens at the time of their birth.
The Tribunal has considered whether the children might be dual citizens of Australia and Vietnam[4] but Vietnamese law generally does not permit a person to hold more than one nationality.[5] There are some exceptions to this, and some sources indicate that a person resident overseas who has acquired foreign citizenship and wants to retain Vietnamese nationality is permitted to do so.[6] However, other sources indicate this only applies where an individual resident overseas and holding foreign nationality wishes to regain Vietnamese nationality that has been lost.[7] A person can also apply to renounce their Vietnamese Nationality when seeking citizenship of another country.[8]
[4] In considering this issue, the Tribunal has had regard to the analysis and findings of General Member V Price in Tribunal case no. 2009593.
[5] Article 4, Law on Vietnamese Nationality 2008; see also Lyma Nguyen, ‘Report on Citizenship Law: Vietnam’, Robert Schuman Centre for Advanced Studies at European University Institute, September 2017, page 9.
[6] Vietnam Teaching Jobs, ‘Does Vietnam Allow Dual Citizenship?’, 17 January 2025; and Stephen Le, ‘Does Vietnam Allow Dual Citizenship?’, Le & Tran Family lawyers, accessed 15 April 2025.
[7] Lyma Nguyen, ‘Report on Citizenship Law: Vietnam’, Robert Schuman Centre for Advanced Studies at European University Institute, September 2017, at page 15.
[8]Article 27(1), Law on Vietnamese Nationality 2008; and see Lyma Nguyen, ‘Report on Citizenship Law: Vietnam’, Robert Schuman Centre for Advanced Studies at European University Institute, September 2017, page 14.
In this case, the Tribunal finds that even assuming the children’s fathers were once Vietnamese citizens (noting they were born there), for the children to have been Australian citizens since birth, their fathers themselves would no longer hold Vietnamese nationality. The applicant confirmed in the hearing that she has not taken any steps to even register her children with the Vietnamese authorities and was not aware of what steps would be required for her children to obtain Vietnamese citizenship, however, it was clear as well that she was unaware that the children could not hold both nationalities. The Tribunal is satisfied that at this time, the children hold only Australian citizenship. They do not have nationality or citizenship of Vietnam. Based on the discussion at the hearing, the Tribunal finds that the applicant has not taken any steps to even register her children’s births with the Vietnamese authorities and she has never contemplated her children renouncing their Australian citizenship.
Political and other claims raised in the visa application
On the basis of the applicant’s oral evidence to the Tribunal, the Tribunal accepts the applicant was unaware of the claims raised in her application. It accepts she has never been politically active, nor want to be, and she does not fear harm on this basis. The Tribunal finds that the applicant does not have a well-founded fear of persecution and does not face a real risk of significant harm in Vietnam for the reasons raised in her protection visa application form.
Consideration of claims raised before the Tribunal
The applicant’s fears about returning to Vietnam rest on her not being able to care for and provide for her children’s education as well as generally, and for the treatment she would receive in Vietnam because of her personal profile and circumstances and those of her children.
The Tribunal accepts that the applicant is a divorced woman (having been previously married when she lived in Vietnam), and that she is a single, unmarried mother of illegitimate, non-Vietnamese citizen children for whom she is the sole carer. It also accepts that she comes from and would be returning to, a rural area in Ca Mau, that she only has contact with one family member which is her mother (who is elderly approaching [age] years old) and does not have direct contact with the applicant’s children). It accepts that she is uneducated having only attended school up to [a grade]. It also accepts that the only work she performed in Vietnam was in [farming] and that in Australia she has worked casually in low-skilled work whilst also relying on government assistance given to her Australian citizen children.
While the children are Australian citizens and are not parties to this visa application or review, the Tribunal is mindful that the applicant has sole custody and is their sole carer. Their fathers are entirely absent from their lives and there is no indication of any other significant adult who might care for them were the applicant returned to Vietnam. In these circumstances, the Tribunal finds that the children would accompany the applicant on her return, and it is incumbent on the Tribunal to consider the impact on the applicant’s circumstances, having her two daughters with her and having caregiving responsibilities for them. Also relevant is how her children’s non-Vietnamese citizen status may affect her.
Country information applicable to the applicant’s circumstances
Overall, the country information about how persons in the applicant’s circumstances may be treated in Vietnam is mixed, it being nuanced by the geography and demography of a person’s area and community, their education levels and socio-economic positions, their household registration status and availability of support networks.
Firstly, addressing the applicant’s identity marker as a divorcee, information from DFAT indicates that divorce is increasingly common and accepted in Vietnam, particularly in cities, and that divorcees are free to re-marry. Community attitudes to divorce had shifted, particularly among younger people in urban areas, and stigma was less pronounced. Where it exists, stigma is most likely to take the form of family shame and family ostracism. It does not generally translate into physical harm but in addition to the shame and ostracism, stigma can have economic consequences, affecting the affordability of suitable accommodation particularly in rural areas - which is where the applicant would live.[9]
[9] 'DFAT Country Information Report - Vietnam', 19 February 2025, 20250219095017
The applicant is also a woman, a single woman and a single mother. The United States Department of State (USDOS) assessed last year that while Vietnamese law provides for gender equality, women continued to face societal discrimination, and inequality was generally worse in rural areas.[10]
[10] '2023 Country Reports on Human Rights Practices - Vietnam', US Department of State, 22 April 2024, 20240423112800
As for single women, in 2023, it was reported that one-third of women aged 15 to 49 were not married. There is no precise data available on the prevalence of single motherhood in Vietnam, but the rising divorce rate suggests that an increasing number of women may be raising children alone.[11] It appears that with this demographic shift, the situation in Vietnam has changed for the better in recent decades. There are no longer any legal barriers to being a single female-headed household. Single mothers and their children have been recognised as legally legitimate under Vietnamese law since 1986[12] and since 2003 single women’s rights to motherhood have also been specifically recognised, allowing for sperm donations so babies can be born to single mothers through in vitro fertilization (IVF).[13]
[11] 'DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025, 20250219095017; 'Mẹ, Myself, and I: Single Motherhood in Vietnam', Arria Hauldin, Omprakash.org, 19 December 2019, 20211217155943; 'Vietnamese single mothers challenge dating, marriage stereotypes', VNExpress, 05 July 2024, 20240708153116; ‘Complex transformation of divorce in Vietnam under the forces of modernization and individualism’, Tran Thi Minh Thi, International Journal of Asian Studies, 23 March 2021, p.228, 20211216130738
[12] 'Law No.52/2014/QH13 on Marriage and Family', Sociailst Republic of Vietnam, 19 June 2014, CISEFCB23F7557
[13] ‘Single women enjoying independent lives on the rise in Vietnam's cities’, Xinhua News 28 April 2017, xinhuanet.com/english/2017-04/28/c_136242414.htm, accessed 1 May 2025
Additionally, sources reflect that general attitudes amongst Vietnamese people towards single motherhood, pre-marital sex and out-of-wedlock pregnancies have become more open or relaxed (or even ‘more favourable’).[14] The government has been working with international organisations to push for gender equality and to improve women’s health and education.[15] The New York Times has recognised that while single mothers in the countryside still face hardship, discrimination and shame, they were benefiting from government initiatives that started with the older generation.[16]
[14] 'Mẹ, Myself, and I: Single Motherhood in Vietnam', Arria Hauldin, Omprakash.org, 19 December 2019, 20211217155943; 'Vietnamese single mothers challenge dating, marriage stereotypes', VNExpress, 05 July 2024, 20240708153116; ‘Holt's work in Vietnam began in 1973’, Holt International, 2021, 20211217143225
[15] A Tiny Village Where Women Chose to Be Single Mothers', The New York Times, 15 February 2013, CX323456
[16] A Tiny Village Where Women Chose to Be Single Mothers', The New York Times, 15 February 2013, CX323456
Overall, DFAT assesses that single women and divorcees, including single mothers, face a low risk of official discrimination. DFAT assesses single women and divorcees, including single mothers, face a moderate risk of societal discrimination in the form of family pressure to marry in the case of single women and family ostracism in the case of some divorced women, particularly in rural areas. DFAT cautions that stigma does not necessarily translate into broader societal discrimination, and single women and divorcees, including single mothers, can still lead meaningful lives, particularly where they have support networks to call upon. DFAT does not further specify what is meant by ‘meaningful lives’, but taken in context, the Tribunal infers it suggests some reasonable standard of living and freedom from persecution.
Considering the above, the Tribunal accepts that overall, the situation for divorcee single mothers has improved, and that it is entirely possible for some divorcee single mothers in Vietnam to lead ‘meaningful lives.’
However, country information also sets out that experiences of single mothers in particular, are not uniform. Their experiences are affected by geography and demography, by one’s own family’s composition and values and that of their communities’, the availability and strength of support networks, their education level, socio-economic status and household registration.
DFAT also addresses that Vietnamese culture emphasises traditional, conservative patriarchal family values: cohesiveness under a male family patriarch is highly valued. Women who are single face (usually non-violent pressure and usually from family members) to marry. DFAT reports that
“…Single women and single mothers, including with children born out of wedlock, may attract stigma, especially in rural areas, where, according to in-country sources speaking in October 2023, women had less freedom and privacy compared to big cities like Hanoi and Ho Chi Minh City, and social attitudes were more conservative. If lacking family support and stable employment, single women may experience difficulty finding suitable and affordable accommodation.”
Such family values have been specifically promoted by the Vietnamese government. In the early 2000s, the government established Vietnamese Family Day and sponsored the ‘Happy Family’ promotion and since then has promoted the "Happy Family - Prosperous Nation” theme annually.[17] A recent study suggests this promotion sets benchmarks of a heterosexual family with “an adequate income, two children, and stable conjugal relations”, excluding single mothers and furthering the stigma towards them.[18]
[17] VinPearl, ‘Vietnamese Family Day: Origin, significance and more’, 24 February 2024, accessed 5 May 2025
[18]Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.138, 151, >
The United Nations Development Programme has noted that while the number of single mothers has been increasing in major cities of Vietnam, the majority of them are said to be highly educated and earning ‘great livings’ such that they can finance themselves and their babies. In 2017, UNDP assessed that in fact the legal regulations were not yet supportive enough to single mothers and their children, and that more needed to be done to ensure equal access to social resources, and to help those single women with lower incomes and limited information on related policies.[19]
[19] ‘Single women enjoying independent lives on the rise in Vietnam's cities’, Xinhua News 28 April 2017, xinhuanet.com/english/2017-04/28/c_136242414.htm, accessed 1 May 2025
More recently, in 2021, an NGO that provides various services to assist single women ‘Holt International’[20] remarked that while society is becoming more open, the level of stigma towards single women and children born out of wedlock was still overwhelming and that stigma of unwed motherhood remains a serious issue, particularly in rural, impoverished communities where tradition is highly valued’.[21] Currently, in May 2025, the same NGO’s Vietnam country page continues to refer to disparities between rural and urban living and to an enduring stigma towards single mothers threatening the stabilities of families.
[20] Holt International is a Christian non-profit organisation providing support services to children in Vietnam and across the world
[21] ‘Holt's work in Vietnam began in 1973’, Holt International, 2021, 20211217143225; Holt International, 'Single Mother Support', 2021, 20211217143539.
The stigmatisation was also reflected in other studies, including in studies published in 2023.[22] One such study also found that some women who worked in environments where they were in physical contact with male co-workers or managers, experienced unwanted sexual advances at work.[23]The study also reflected the stigmatisation of the children because of their mother’s status regardless of whether they lived in a city or in a regional area.[24] A different study in July 2023 also reflected that stigma and discrimination had a worse impact on livelihood capitals in rural areas.[25]
[22] The Tribunal notes that this study was based on interviews with participates in 2018 and focused in the more conservative northern regions. However, it is broadly applicable and some of the same sentiments are also reflected in other studies and by other sources.
[23] Vu, T.T. ‘Single motherhood in contemporary Vietnam: a qualitative examination of social stigma, the need for schooling, and government support’, Western Sydney University, January 2023, p.103,
[24] Vu, T.T. ‘Single motherhood in contemporary Vietnam: a qualitative examination of social stigma, the need for schooling, and government support’, Western Sydney University, January 2023, pp.113-115,
[25] Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.131-132,
The July 2023 study of unmarried single mothers in a rural district found that the average income of unmarried single mothers in the district was much lesser than average local income with 35.8 percent of unmarried single mother households being formally classified as poor, while 12.3 percent were near-poor. In this context too, it should be noted that most of the unmarried single mothers in the study had completed no more than secondary school and that high levels of education were deemed as essential to securing good employment.[26] The Tribunal notes that the current review applicant’s education level is below that of many of the participants, being limited to [a grade].
[26] Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.138, 151, >
DFAT reports that single women, including single mothers, may receive state welfare (assistance with bills, living expenses and health insurance), including if classified as poor or near-poor or have a disability. However, DFAT qualifies that these services may be limited by other factors; for example, women who work in the informal sector may not be covered by social insurance, and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they reside. Without a local registration, access to services such as public education and healthcare becomes difficult.[27] Additionally, DFAT warns that welfare eligibility can be complex, and access should not be assumed. DFAT notes that high rates of informal employment also significantly limit the number of people who can access social insurance and associated benefits.
[27] DFAT, ‘DFAT Country Information Report: Vietnam’, 11 January 2022, 20220111094403, 5.23.
Other sources confirm the same – that single mothers lack formal welfare support, particularly as they are generally employed in the informal sector which limits their access to welfare.[28] The January 2023 study had found that government support for single mothers in Vietnam was very limited, owing to strict criteria and means tests which deem many single mothers ineligible. While the government is making efforts to improve the welfare system, it is described as fragmented and not particularly well-targeted. And according to DFAT, even where such welfare is accessed, absent other means of support, such as family, sole reliance on welfare would generally be insufficient to sustain a recipient.
[28]Truc Ngoc Hoang Dang, Thanyaporn Chankrajang, Yen Thi Hai Nguyen, ‘Patterns and Trends of Single Motherhood in Vietname in 1999 and 2009, Journal of Demography Volume 33 Number 1 June 2017
Country information relevant to the applicant’s children’s circumstances also reflects that children of single mothers also face stigmatisation[29] and children with foreign nationalities (such as the applicant’s children with their Australian nationalities) can also face other hardships.[30] A 2019 study for the Australian Research Council focused on Can Tho in Southern Vietnam not far from the applicant’s home area noted that children with foreign nationality such as the applicant’s children who cannot obtain household registration can be rendered ‘de facto stateless’ even though they retain their father’s nationality. This is because they are considered as lacking effective nationality or protection in Vietnam and suffer considerable inconvenience and potential discrimination from this status.[31] The study found that:
“In practice, children within this category can only be registered as ‘temporary’ rather than ‘permanent’ residents, as they are not Vietnamese citizens, and therefore must renew their registration every six months (and they must also renew their temporary residence visa which permits them to reside in Vietnam).
...The registrations for many of these children may lapse, as it is time-consuming and can be costly to continually renew their registration. Further, due to the remote location of the children it may be logistically difficult to renew their registration.
…Mothers may fail to renew their child’s registration due to their limited understanding of the law and in the end, many children live impoverished lives with their mothers and/or relatives.”[32]
[29] Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.131-132,
[30] Susan Kneebone, Brandais York And Sayomi Ariyawansa for the Australia Research Council, ‘Degrees Of Statelessness: Children Of Returned Marriage Migrants In Can Tho, Vietnam’, Statelessness and Citizenship Review, 2019
[31] Susan Kneebone, Brandais York and Sayomi Ariyawansa for the Australia Research Council, ‘Degrees of statelessness: Children of returned marriage migrants in Can Tho, Vietnam’, Statelessness and Citizenship Review, 2019
[32] Susan Kneebone, Brandais York and Sayomi Ariyawansa for the Australia Research Council, ‘Degrees of statelessness: Children of returned marriage migrants in Can Tho, Vietnam’, Statelessness and Citizenship Review, 2019
The study found that a lack of the adult relative’s understanding of the consequences of the law and facing financial difficulties affected the decisions acting on behalf of the children and many children’s documentation lapsed. As a result, children were living in Vietnam unregistered or undocumented under Vietnamese law, effectively as illegal migrants in Vietnam, without any legal entitlement to the benefits of the Vietnamese social system including public schooling, unless local authorities exercised their discretion to allow them to attend. The lack of household registration has the effect of the child being ‘de facto stateless’ and lacking protection from the state.[33]
[33] Susan Kneebone, Brandais York and Sayomi Ariyawansa for the Australia Research Council, ‘Degrees of statelessness: Children of returned marriage migrants in Can Tho, Vietnam’, Statelessness and Citizenship Review, 2019
Findings: Refugee criteria
The applicant is a woman, a single woman, a divorcee and single mother. She would be returning to a rural area in Vietnam as the sole caregiver for two non-Vietnamese citizen children with her only support network an elderly woman. She has a low-level of education (to only grade four) and only has an employment background in low-skilled work.
The country information discussed above indicates that divorcees and single mothers such as the applicant are officially recognised under Vietnamese law and there are no longer any official legal barriers to being a single female-headed household. There is some evidence of measures being taken to improve things and there is some provision of social welfare or financial aid. However, it is widely recognised that single mothers face stigmatisation and discrimination perpetuating from the traditional, conservative patriarchal family values of Vietnamese culture, and the state-sponsored ‘Happy Family’ notion reinforces that stigma.[34] Legal regulations are considered inadequate,[35] there are complex barriers to social welfare and the insufficiency of it if it is granted is also problematic in terms of protections. The information is clear that single mothers in rural areas with lesser education and a lack of support networks face a greater degree of stigmatisation and discrimination, much worse than single mothers in other circumstances. Stigma and discrimination and the effects of such in accessing livelihood capitals is worse in rural areas.[36]
[34] DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025, 20250219095017; Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.138, 151,
[35] Single women enjoying independent lives on the rise in Vietnam's cities’, Xinhua News 28 April 2017, xinhuanet.com/english/2017-04/28/c_136242414.htm, accessed 1 May 2025
[36] Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.131-132,
While access to social welfare is theoretically possible, the Tribunal gives weight to the assessment by DFAT and others who refer to barriers manifesting through complex administrative criteria and means testing, and to their warnings that access cannot be guaranteed. Even when if it were granted, based on DFAT’s advice, the Tribunal is not satisfied it would be sufficient to sustain the applicant, who would be lacking any meaningful of practical family support, and the applicant has the additional challenge of caring for her daughters. The applicant’s son has cut her off due to her daughters’ births (as the country information reflects many family members do, particularly in rural and conservative areas) and she does not have contact with her own father; nor does she have any friends. The applicant’s only family in Vietnam is her elderly mother whom she describes as frail. In this circumstance, the Tribunal is not satisfied the applicant has any meaningful or practical support network in Vietnam.
The applicant would have to try to obtain work in Vietnam. The country information does not specifically suggest single mothers are denied work in Vietnam, but with stigmatisation and discrimination ingrained particularly rurally, the Tribunal infers she may face additional challenges in securing opportunities for work. In the applicant’s circumstances, any work she does find is most likely to be in the informal sector in Ca Mau – either in [farming] which she has done there before or in other low-skilled labour. This, the Tribunal notes would limit her ability to access social insurance and associated welfare benefits. It is likely too, that work of this nature would involve mixed-gendered environments, and the Tribunal notes that recent study participants referred to an increased risk of unwanted sexual advances towards single mothers in such environments. Additionally, absent a support network and any government assistance for her children, the practicalities of earning a livelihood will present further challenges.
Nothing in the country information indicates that the applicant might be eligible for any assistance for her non-citizen children. While children born abroad whose births are registered and are Vietnamese nationals can access government services like any other citizen of Vietnam[37], the Tribunal is not satisfied these children - who have not renounced their Australian citizenship and whose sole custodian have not taken any steps towards their Vietnamese birth registration or citizenship (or even contemplated such)- would be eligible to obtain household registration which is required to access government services.[38] Vietnam generally does not allow for dual citizenship and the applicant has neither sought to register her children’s births, nor contemplated their renunciation of Australian citizenship. The Vietnamese government has recently signalled they may relax their requirements to allow people wishing to regain Vietnamese nationality without renouncing their other citizenship, but there is no specific timeframe in which this might come into effect, and nor is it clear that this would apply for the applicant’s children born in Australia to Australian citizen fathers.[39] Taking into account these matters and the above country information, the Tribunal is not satisfied that the applicant would be able to obtain any welfare assistance for her children, given they are non-Vietnamese citizens. And while the Tribunal notes the country information indicating that public education is free and compulsory up to a certain age, the Tribunal is not satisfied the applicant’s children, lacking Vietnamese citizenship and registration, would be eligible and able to access this, nor other government services.
[37] DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025, 20250219095017
[38] DFAT Country Information Report - Vietnam', Department of Foreign Affairs and Trade, 19 February 2025, 20250219095017
[39] Vietnamnet Global, ‘Vietnam proposes easing dual citizenship rules for overseas Vietnamese’ 10 Aril 2025, accessed 5 May 2025; VN Express International, ‘Vietnam may allow dual citizenship under amended law’ 9 April 2025, accessed 5 May 2025
In addition to the economic effects of stigmatisation and discrimination, the Tribunal accepts there are also social and psychological impacts. The applicant has referred to single mothers being looked down upon in Vietnam and the information above about stigmatisation supports that this is the case. Research indicates too that single mothers are imprinted with a sense of inferiority and consider themselves as people with low social status, causing a lack of confidence which impacts their livelihood opportunities in various ways, including accessing loans, and being socially isolated or excluded.[40] The country information also indicates that her children would face stigmatisation – for their mother’s unmarried status, and not having a father figure. The applicant’s children also face additional challenges not being Vietnamese citizens. They were also born out of wedlock and would be considered illegitimate. While the Marriage and Family Law of Vietnam prohibits discrimination against children on the basis of their parents’ marital status, stigma continues to affect them particularly in rural and conservative areas, and the Tribunal accepts that this would by extension affect the applicant. The Tribunal accepts that these things would impact the applicant – emotionally, and logistically and economically. The Tribunal finds that in addition to social isolation and exclusion and the stress of proving for and caring for the psychological welfare of not just herself but her children, the effect of lack of government welfare support, family support and ability to access public education will weigh heavily on this applicant.
[40] Nguyen, T.A. et al, ‘Single Mothers’ Livelihoods in Rural North Central Vietnam: Struggles for a Good Life’, European Journal of East Asian Studies, 27 July 2023, pp.138, 151, >
The Tribunal places weight on these personal attributes and environmental factors affecting the applicant, and on its concerns for the applicant’s vulnerability and ability to self-advocate and to ensure her children obtain and maintain regularised status. The Tribunal is mindful that the applicant lacked awareness of the Australian visa system and as the 2019 study showed, many mothers allow their non-citizen children’s documentation or registration to lapse due to a lack of understanding and/or a lack of financial means. The Tribunal notes that the applicant displayed disengagement regarding the situation in Vietnam and very little knowledge about the country conditions she would be facing, having lived outside the country for [number] years, and returning with non-citizen, illegitimate children, and her only engaged family member (her mother) being now much older, and frail.
Having regard to the country information above and the applicant’s circumstances, the Tribunal accepts that the applicant, with her characteristics - being an uneducated woman who has only done low-skilled work, a divorcee, a single woman, a single mother and a mother to non-Vietnamese citizen children born out of wedlock without a support network - will be subjected to a degree of discrimination, and that this applicant, having all those characteristics and additional vulnerability discussed in the preceding paragraph will be impacted to a much more significant degree than persons with just one or even two of those three characteristics. The Tribunal considers that the applicant will be affected by multiple/additive discrimination from the sum of her characteristics just set out, and that the stigma and discrimination will have compounding effects.[41]
[41] Meghan Campbell, ‘CEDAW and Women’s Intersecting Identities: A Pioneering New Approach to Intersectional Discrimination’ (2016) 2(3) Oxford University Working Paper,p1; Aisha Nicole Davis, ‘Intersectionality and International Law: Recognizing Complex Identities on the Global Stage Student Note’ (2015) 28 Harvard Human Rights Journal,209; CoE and EU Agency, ‘Handbook on European Non-Discrimination Law’,p59
Having regard to the country information and the applicant’s personal attributes individually, cumulatively and in their intersecting sense, the Tribunal considers that the chance that the applicant, in her specific circumstances, will face societal discrimination and a lack of protection from the state which the sum of will amount to serious harm cannot be said to be remote. The Tribunal is satisfied that the applicant faces a real chance of harm and the harm will amount to serious harm as contemplated by s 5J(5), of the Act.
The Tribunal has considered very carefully the systematic & discriminatory element which must be met under s 5J(4)(c). In particular, the Tribunal has considered that there are no legal barriers to being a single mother, that social welfare does exist, and that efforts towards improvement are being made. However, the discrimination and stigmatisation against persons with even just part of applicant’s profile is widely known to occur, and it is worse in rural areas, and the barriers to welfare have been well documented. The stigma and discrimination is entrenched in cultural values which are reinforced through government sponsored campaigns and the protections and supports are inadequate for single mothers who are not themselves educated and not otherwise supported. In the circumstances, the Tribunal considers that the discrimination and stigma against the applicant that will cause the mistreatment or harm would be directed at the applicant (or protections not afforded to her) in a non-random and selective manner because of her status as a single mother, or a single mother of illegitimate (and non-citizen) children. The Tribunal finds that the harm would be systematic & discriminatory as required by s 5J(4)(c).
The Tribunal finds that the essential and significant reasons for the harm will be the applicant’s membership of the particular social groups ‘single mothers in Vietnam’, ‘single mothers of illegitimate children in Vietnam’, and ‘mothers of children with foreign nationality’. The Tribunal is satisfied that the harm is for one of the reasons set out in s 5J(1)(a), and that it is essential and significant reason as required by s 5J(4)(a).
While the Tribunal notes that there is legislation, and some supports structures in place, it gives weight to the information cited from the sources above which indicate that despite legal recognition and some protections against discrimination, these are inadequate or ineffective in practice and reinforced by state-sponsored values and practices. In the circumstances, the Tribunal is not satisfied that the applicant could engage protections or access support, welfare or assistance of any kind such that s5J(2) would apply. The Tribunal is therefore not satisfied that effective protection measures are available for the harm the applicant faces. The Tribunal finds that s5J(2) does not apply.
The Tribunal is satisfied the applicant would face the discrimination and stigma throughout Vietnam, as would her children. The Tribunal notes that the country information consistently refers to the situation being worse for persons of the applicant’s profile in the rural and conservative areas of Vietnam, but the information still reflects stigma and discrimination for single mothers throughout the country (albeit to a lesser extent for educated persons in the major cities) and the information about the barriers to welfare and lack of legal supports, and the impact of lacking support networks applies nationally. The applicant’s profile will remain unchanged, and much of her circumstances and the effects of the harms will not change either, on account of geography. In the applicant’s circumstances, the Tribunal finds that the harm relates to all areas of the country, as required by s5J(4)(c).
Having regard to s 5J(3), the Tribunal finds it would not be reasonable for the applicant to modify her behaviour. To do so would require her to conceal her gender and her children – immutable characteristics and ones that the Tribunal accepts are fundamental to the identity and conscience of this applicant. These would be impermissible modifications for s 5J(3)(b), if she could even achieve it. The Tribunal finds that s 5J(3) does not apply.
The Tribunal is satisfied that the applicant did not have children in the circumstances she did in order to strengthen her claims. There is nothing in the applicant’s conduct in Australia which ought to be disregarded pursuant to s 5J(6).
Taking all of the applicant’s circumstances into account, and the country information and other research, the Tribunal finds that she has a well-founded fear of persecution. The applicant meets the criteria in s 36(2)(a). She is a refugee.
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As noted above, the Tribunal has considered s.36(3) of the Act but based on the available evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 7 March 2025
Representative: N/A
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.
…
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