2014721 (REFUGEE) - [2025] ARTA 2254

2014721 (REFUGEE) [2025] ARTA 2254 (3 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2014721

Tribunal:General Member M Brereton
Date:3 September 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 September 2025 at 12:21pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan shark – fear of physical assault – lengthy period of unlawful residence – employment – state protection – referral for Ministerial Intervention – Australian citizen adult child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 351, 499
Migration Regulations 1994, 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 1 October 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, applied for the visa on 4 June 2019. The applicant claimed to fear harm because she borrowed a large amount of money in Vietnam and has not repaid it. She claimed that gangs have been hired to find her and harm her. The delegate refused to grant the visa on the basis that the applicant did not fear harm for one of the reasons in s 5J(1)(a), and because the Vietnamese authorities could protect her from any harm that she does fear.
The applicant appeared before the Tribunal on 27 August 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Son A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
BACKGROUND
The applicant is [an age]-year-old woman from a province in the Mekong Delta region of Vietnam. She left Vietnam in 2000 and stayed for 12 months in [Country 1]. [In] October 2002, she left [Country 1] and arrived in Australia as the holder of a visitor visa. She did not depart Australia when the visa expired and remained as an unlawful non-citizen until she made the protection visa application in 2019. She has a son ([Son A]) who was born Australia in [year]. Neither she nor [Son A] have any contact with [Son A’s] father.
Evidence before the Department
Protection visa application
The application for the protection visa states that the applicant arrived in Australia and overstayed “due to her personal circumstances”. An attached statement sets out the following:
THAT: I am making this statutory declaration in support of my Application for a Protection visa (Subclass 866).
THAT: I was born on [date] at [address] in the family of [number] children ([genders specified]).
THAT: I arrived in Australia [in] October 2002 on a visitor visa and Vietnamese passport ([number]). I have overstayed my visa due to my personal circumstances.
THAT: In [year] I was engaged in a boyfriend/girlfriend relationship with a Vietnamese namely [Partner A in a couple of months. I have never met him again and known whereabouts of him.
THAT: After our relationship had ended I discovered I was pregnant. [In year] I gave birth to my child who was named [Son A]. At school he is called [name variant].
THAT: When in Vietnam I borrowed VND [amount] ([amount] Vietnam Dong) from the loan sharks and compromised to repay them as I believed I could borrow money from my relatives in Australia. But I failed to borrow money from my relatives. This amount of money was used for my visa applications to [Country 1] and Australia.
THAT: Apparently, the debt has increased significantly in the past 17 years. It is not possible, if not impossible, for me to repay the debts for the time being.
THAT: I have been told by my relatives and friends in Vietnam that the lenders have hired the gangs "Xa hoi den" to come to my house and looked for me. They threatened to harm me if I do not repay the debt.
THAT: I have also heard that nowadays in Vietnam many gangs involved in loan sharking. They would do whatever things to collect the debts for the lenders in order to share the collected amounts. In a number of cases I heard that the gangs cut the ears or fingers of the debtors.
THAT: I am holding the genuine fear of real harm and would like to request the Australian government to protect me for the time being.
THAT: I understand the Vietnamese authorities are keen to protect their people. But it is not possible for them to protect me 24 hours. The gangs can harm me at any time. I am really scared of them.
THAT: It is not easy to relocate to another place to keep away from the gangs because (a) one has to have a permit from the authorities where they live and a permit of the place where they arrive; and (b) one has to work to earn for their living and that the gangs will find them easily.
Supporting documents
The applicant provided a copy of her (expired) Vietnamese passport in support of her claim as to identity.
The interview
The applicant was not asked to provide further information or invited to attend an interview with a delegate.
Summary of the delegate’s decision
The delegate considered that the applicant had made the following claims:
She claims that she borrowed money from loan sharks in Vietnam and could not repay the money.
She claims that the debt has significantly increased over the last 17 years, and it is not possible for her to repay the money.
She claims that gangs have been hired to look for her, and they have threatened to harm her if the debt is not repaid.
She claims that the Vietnamese authorities cannot protect her from gangs for 24 hours.
She claims that she cannot move to another part of the country because she needs a permit to move and the gangs will still find her.
The delegate found that the claims made are based on a private dispute and was not satisfied that the claims relate to any of the refugee grounds set out in subsection 5J(1)(a) of the Act. The delegate considered the applicant’s circumstances, and country information which demonstrates that whilst the Vietnamese government is unable to prevent debts being incurred in the first place or protect borrowers from illegally high repayments, the authorities appear to be making inroads in arresting perpetrators when they attempt to enforce payment of debts through violence. The delegate found that the applicant will be able to access effective state protection.
The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Pre-hearing submissions
The application for review to the Tribunal does not contain any additional information, evidence, claims, or submissions.
The hearing
The applicant attended an in person hearing on 27 August 2025. The applicant’s evidence and submissions are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm from illegal money lenders because of a debt she has not repaid. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant claims to be a citizen of Vietnam. She has provided a copy of an expired Vietnamese passport as proof of her identity and nationality. She does not claim to have a right to enter or reside in any other country. The Tribunal accepts the applicant’s claims as to identity and nationality and finds that she is a citizen of Vietnam, and that Vietnam is the receiving country and country of reference for the purposes of this review.
Family
The applicant has a son, [Son A], who was born in Australia in [year]. [Son A] is now [age] years old and is not included as an applicant in this application. He appeared at the hearing and told the Tribunal that he is an Australian citizen.
Claim
The applicant claims to fear harm because of a debt arising from a loan she took out in Vietnam. She claims to have borrowed [amount] Vietnamese Dong (VND) (about AUD$[amount]) before leaving Vietnam. She has not paid any of this loan back in the 23 years since arriving here. The applicant fears that the debtors have employed a gang to find her and harm her.
The applicant told the Tribunal that she was born and raised in a town in the Mekong Delta region of Vietnam. Her parents were rice farmers, but her father died when she was very young. Her mother did not remarry. She attended school to year five and also did a [vocational] course. Her mother came to Australia many years ago, before the applicant, and has remained here. The applicant has a sister in Vietnam. She has siblings, nieces, and nephews in [Country 1] and Australia.
The applicant told the Tribunal that she had a small business in Vietnam as a [business specified]. She ran into debt and was unable to pay her creditors. She said that there was a man in her hometown, [Mr A], who was able to lend money to people. She approached [Mr A], and he said that he could lend her [amount] VND with an interest rate of 20% per month. The Tribunal asked why she would agree to a loan on these terms, and she said that she could not obtain the money from anywhere else. She said that she had asked her family in Vietnam and overseas if they could lend her money, but they are not wealthy and were not able to. She said that the money lender was her only option. She took out the loan and paid off her debtors. She used the leftover loan to travel to [Country 1] to see her siblings there. She obtained a temporary work visa and worked in [Country 1] for about a year.
The Tribunal asked her if she had paid any of the loan back. She said that she has not paid anything, principal or interest. She said that she had hoped to borrow some money from her siblings in [Country 1] and Australia to send back to the money lender but they were not able to lend her any. She said that she did not have work rights when she arrived in Australia in 2002 and told the Tribunal that she did not work while she was here unlawfully. The Tribunal asked how she supported herself and her son and she said that she lived with siblings and other relatives. She did house cleaning, baby sitting, and other domestic chores for them and they helped her and her son.
The Tribunal asked her what happened with the money lender after she left Vietnam. She said that after a few years the money lender came to her sister’s house in the hometown and asked where the applicant was. In her statutory declaration she said that the money lender has come back looking for her. The Tribunal asked when he had first come to the sister’s house. She said that he came in 2007. She said that the most recent time was October 2024, when he told the sister that if he finds the applicant he will cut off her finger. The Tribunal asked how many times the money lender has come to the house. She said that he came in 2007, 2009, and 2024. The Tribunal asked why he would suddenly come back in 2024. The applicant said that he is a money lender and has many clients. The Tribunal put to the applicant its concern that the money lender had done nothing for many years but she claims that has recently started looking for her again. The applicant spoke with her representative and the representative provided a submission following a natural justice break. The representative said that the applicant had become confused and thought the question was referring to the first and last visits, not to visits in between. The representative said that the applicant’s evidence is that the money lender has returned to her sister’s house on multiple occasions between 2007 and 2024.
The Tribunal takes into account that the applicant appeared very nervous and tentative at the hearing. It also notes without any disrespect that the applicant has limited education and was giving evidence through an interpreter. The Tribunal still has doubts as to the frequency of the money lender’s visits but having regard to the applicant’s personal factors, considers it is appropriate to give the applicant some benefit of the doubt. The Tribunal accepts that the applicant has taken a loan from a money lender in Vietnam and has not repaid the amount. The Tribunal is prepared to accept that the money lender has visited the applicant’s sister and has tried to locate the applicant. Howver, the Tribunal has concerns in relation to the claim that the money lender continues to look for and ask about the applicant. The Tribunal is satisfied that the applicant was clear in her response that there were only three visits, with the last one claimed to have been in 2024. The Tribunal reject’s the applicant’s submission that she misunderstood the question but does accept that the lender tried to locate her between 2007 and 2009. The Tribunal does not accept that there have been any attempts since 2009 or that in 2024 the money lender threatened to cut off her finger. The Tribunal accepts that the applicant fears that she will be harmed because of the unpaid debt.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal discussed the refugee definition with the applicant at the hearing. The Tribunal put to her that her fear of harm does not appear to arise because of her race, nationality, religion, political opinion, or membership of a particular social group. The applicant did not dispute this or make any submission on this point, and does not claim to fear harm in Vietnam for any other reason or reasons. The Tribunal finds that the applicant does not fear harm for one of the reasons set out in s 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution, now or in the reasonably foreseeable future, should she return to Vietnam. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A non-citizen may satisfy this criterion if they are:
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.
Subsection 36(2A) defines significant harm as being that:
·the non-citizen will be arbitrarily deprived of his or her life; or
·the death penalty will be carried out on the non-citizen; or
·the non-citizen will be subjected to torture; or
·the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
·the non-citizen will be subjected to degrading treatment or punishment.
The Tribunal has accepted that the applicant fears harm from the money lender should she return to Vietnam. At the hearing the Tribunal discussed country information about the risks faced by debtors to money lenders, the availability of state protection, and the possibility that debtors can relocate to avoid any harm.
Country Information
The Australian Department of Foreign Affairs and Trade (DFAT) reports:
Loan sharks
A ‘loan shark’ is a moneylender who charges extremely high rates of interest, typically under illegal conditions. Money loaned under such conditions is known as ‘black credit’ in some contexts, including in Vietnam. People unable to readily access formal financial services (including due to a lack of legal documentation), those with poor credit histories and those in urgent need of cash are most likely to seek black credit.
Loan sharks operate in Vietnam. According to in-country sources, as of October 2023, loan sharks were most prevalent in Ho Chi Minh City and other southern provinces, and more ‘hidden’ in Hanoi, where, as the administrative capital, security was tighter. In-country sources said loan sharking was a countrywide problem: organised criminal syndicates provided loan services to anybody who needed them (with loans reportedly provided up to 30 times the official cash rate). According to the United Kingdom’s Home Office, unofficial moneylending services may also be provided by neighbourhood money lenders, which were less likely than criminal syndicates to charge high interest and employ harassment to recoup debts. DFAT cannot attest to how widespread illegal moneylending in Vietnam is but notes that informal moneylending services are widely available, including online, and sometimes advertised openly (e.g. fliers on utility poles or through social networking platforms like Facebook, TikTok and Zalo). According to local and international reporting, people can borrow money from illegal moneylenders in Vietnam with minimal to no collateral.
There is a potential for reprisals for unpaid debts, particularly where the creditor is an organised criminal syndicate. According to in-country sources, speaking in October 2023, reprisals might be carried out by individuals hired by creditors to exert pressure on debtors, rather than by the creditors’ themselves (some loan sharks had established legitimate debt collection companies to pursue unpaid debts). Reprisals can take various forms, ranging from psychological pressure and public embarrassment to intimidation and violence, although in-country sources said violence was not typically used. Specific reprisals may include property damage, asset seizures, playing of loud music outside debtors’ homes, and sending funeral wreaths to their homes or workplaces. While the use of violence was not common, the disruption to a debtor’s life – and associated psychological pressures – was sometime acute. In-country sources reported instances of creditors or their contractors moving into a debtor’s home, including eating their food, until the debt was repaid in part or in full. Debtors’ family members may also face verbal and physical harassment and threats.
In-country sources reported that loans from illegal moneylenders were often used to repay gambling debts or purchase ‘migration packages’ to third countries; with respect to the latter, migration agents were behind these loans in some cases. Illegal moneylending is also often linked to human trafficking. Demand for illegal moneylending services is thought to have increased during the COVID-19 pandemic and associated economic disruptions.
While limited information is available about loan shark victims, in-country sources said criminal syndicates had national and international reach. Where criminal syndicates of such a profile (as opposed to smaller, neighbourhood lenders not affiliated with criminal syndicates) were involved, the threat of reprisal, including violence, could exist in different parts of the country. According to in-country sources, speaking in October 2023, a debtor who escaped without repaying their debt could expose remaining family members to reprisal. In-country sources were aware of instances of debtors who could not repay their loans committing suicide, though could not speak to its prevalence.
In-country sources reported in October 2023 that the Government of Vietnam had taken measures against loan sharks in recent years, including by tightening conditions for debt collection companies. The Prime Minister has issued multiple directives to strengthen government efforts to prevent and combat loan sharking, including in 2019 and 2023. Official Telegram No.766 on strengthening solutions to prevent, stop and handle “black credit” activities, issued by the Prime Minister in August 2023, requested relevant agencies – including the State Bank of Vietnam (Vietnam’s central bank), the MPS and the Ministry of Information and Communications – to, inter alia: strengthen inspections of credit institutions’ operations; diversify loan offerings and banking products to meet peoples’ legitimate borrowing needs; promptly detect, delete and prevent online material related to black credit; and promote awareness of the consequences of black credit. In a move designed to undercut loan sharks, in 2022, the State Bank of Vietnam directed consumer finance companies to work with the VGCL to offer small loans at preferential rates of interest to union members and employees. According to local media reporting in June 2023, at least 65,000 people had utilised this scheme, which local media indicated remained active as of July 2024. Capital Aid for Employment of the Poor (CEP), a microfinance institution active in the south, provides loan and savings products in collaboration with the VGCL to low-income workers and poor labourers, including loans for emergency use. Loans range from VND15 million (approximately AUD945) to VND50 million (approximately AUD3,150), repayable over 12 to 36 months at interest between 0.4 and 0.64 per cent. In-country sources reported in November 2024 that other organisations also provided microfinance for small businesses and individuals, including the Vietnam Women’s Union (which has 20 million members nationally).
State protection from loan sharks is available, and there are examples of loan sharks being arrested, prosecuted and given long prison sentences. According to local media reporting, police in Ho Chi Minh City detected and punished 404 individuals across 263 suspected cases of loan sharking in 2023, and a further 115 individuals across 63 cases in the first quarter of 2024. According to the same reporting, police detected and eliminated 27 mobile applications offering loans at exorbitant rates of interest (up to 900 per cent annually), including ‘Goldvay’, ‘sugarvay’, ‘findong’, ‘wellvay’, ‘cfcash’ and ‘baovay’.
In practice, debtors may be reluctant to report to the police, including due to feelings of shame and, where the creditor is a criminal syndicate, fears of reprisal; in-country sources reported in October 2023 that, unless physical violence was involved, most debtors did not report to the police. Irrespective, the police may be unable to investigate and prosecute a loan shark because there is typically no written evidence of a loan. This is particularly true in recent years: much loan sharking activity moved online during the COVID-19 pandemic and the debtor may not know the identity of the creditor.
DFAT assesses people who owe money to loan sharks do not face official or societal discrimination, with harassment from money lenders mitigated through relocation. When money is borrowed from criminal syndicates, particularly large, organised syndicates, the risk of harassment even after relocation may remain high. When money is borrowed from smaller, community-based lenders, the risk of harassment following relocation is lower. While it cannot be discounted entirely, DFAT assesses the risk of violence for the purpose of recovering unpaid debt to be low overall. The risk of violence may increase where the debtor seeks to consistently evade the creditor, or larger scale criminal syndicates are involved.[1]
Relocation
The 2013 Constitution and the Law on Residence (2020) provide for freedom of internal movement. Internal relocation is very common – people can and do migrate internally, and have done so in large numbers, particularly from rural to urban areas in search of economic opportunities. …
Hanoi and Ho Chi Minh City have previously enacted local legislation to limit relocation because of concerns of overcrowding and associated pressures on infrastructure and services. In-country sources said, to the best of their knowledge, these restrictions were no longer in force or were otherwise not being enforced as of October 2023, pointing to the high rates of population growth in these cities as evidence.
…In-country sources reported in October 2023 that household registration requirements were not enforced strictly and did not present a barrier to relocation. DFAT understands that, where registration in a new location is sought, it is typically granted, including in the case of returnees who have sought and failed to secure asylum abroad.
DFAT assesses internal relocation is possible for most people. Security agencies are highly capable and can locate and monitor a person of interest should they relocate internally, including through the household registration system.[2]
[1] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Vietnam’, 19 February 2025, at [3.175] – [3.183].
[2] DFAT, at [5.33] - [5.40].

The Tribunal put to the applicant that it has not found any information suggesting that money lenders in general are able to use the household registration system to locate and/or monitor people.
The Tribunal also referred the applicant to information from the United Kingdom Home Office (UKHO) and noted that the DFAT assessment is consistent with UKHO’s assessment that in general, people who fail to re-pay illegal loans are unlikely to face serious harm from non-state actors (illegal moneylenders). There is a functioning criminal justice system for the detection, prosecution and punishment of acts constituting persecution or serious harm, which is generally accessible. Whilst there is corruption among the police force and impunity remains a problem, a person who fears a rogue state actor and/or a non-state actor is likely to obtain protection from the state.[3]
[3] UK Home Office (UKHO), ‘Country policy and information note: fear of illegal moneylenders, Vietnam, February 2025, updated 6 March 2025.
UKHO further notes:
The Vietnamese authorities have made efforts to tackle illegal moneylending with some provinces setting up special police units to address the problem. The Ministry of Public Security (MPS), who manage the police, told the UK Home Office fact Finding Team in 2019 that the government had recognised the seriousness of the issue of illegal moneylending and had directed them to address it.
According to some reports, police are proactive in investigating illegal moneylending networks and prosecution of these networks has occurred. An article in VnExpress International noted that since 2019 MPS have dealt with more than 2,700 cases of illegal moneylending involving nearly 5,000 people. Nearly 2,000 cases, involving 4,000 defendants have also been prosecuted.
Whilst authorities have shown a willingness to police illegal moneylending and prosecutions have occurred, apprehending and convicting offenders remains difficult. The high interest rates charged by creditors which are not normally written on loan papers make it difficult to prove a violation occurred. The increase in moneylending apps has also made it difficult to police, although a lack of evidentiary evidence does not mean that authorities are unwilling.[4]
[4] UKHO at [4.1.3]- [4.1.5].
The applicant referred to the information about locating persons who return and/or relocate. She said that the money lender in her hometown is part of a criminal organisation, and the local police are corrupt. She said that the money lender will be able to use the local police to find her if she returns. The applicant, through her representative, said that she does not wish to make any further comment on or reply to the country information.
For the reasons already given, the Tribunal does not accept that the money lender has been looking for the applicant since, at the latest, 2009, which is fourteen years ago. The Tribunal does not accept that the money lender came looking for her in 2024 and threatened to harm her. The Tribunal has referred above to its concerns about the time that has passed since the applicant left Vietnam and the plausibility of the money lender still wanting to find her now. It has also noted the country information that there is generally a low risk of violence arising from illegal loans. However, DFAT also notes that the risk of violence may increase where the debtor seeks to consistently evade the creditor, or larger scale criminal syndicates are involved. In the present case, on her evidence the applicant has evaded the money lender for 23 years. This may indicate that because so much time has passed, the money lender is unlikely to still be interested in enforcing the debt; however, the Tribunal considers that it is also possible that the money lender may see the circumstances as consistent evasion, and the debt as significant enough to want to follow up if they become aware that the applicant has returned.
Having regard to the above, the Tribunal is not satisfied that there is any more than a remote risk that the money lender is still looking for the applicant now. Nevertheless, the Tribunal is prepared to accept that if the money lender becomes aware of her return, they may ask and pressure the applicant to resume repayments. The country information cited above indicates that violence is not a common tactic used by illegal money lenders, absent other factors such as gambling debts or criminal involvement, which are not claimed by the applicant. The Tribunal accepts that the applicant may be asked and pressured to repay the loan and that this may be difficult for her; however, the Tribunal is not satisfied that any pressure or difficulties she may face will include, comprise, or amount to the arbitrary deprivation of her life, the infliction of the death penalty, or torture. Nor is it satisfied that pressure to pay and/or any potential financial difficulties will amount, singly or cumulatively, to cruel and inhuman, or degrading, treatment or punishment, inflicted intentionally, as contemplated by the Act.
The applicant does not claim to fear harm for any other reason, or combination of reasons, now or in the reasonably foreseeable future, should she return to Vietnam. The Tribunal finds that she does not face a real risk of significant harm for any other reason, or combination of reasons, now or in the reasonably foreseeable future, should she return to Vietnam.
Having regard to all the above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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).
Request for Ministerial Intervention
During the hearing the applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act. Section 351 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. The Minister may consider exercising public interest powers in unique or exceptional circumstances which include (as relevant here):
· strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
· compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.[5]
[5] Minister's guidelines on ministerial powers (s 351, s 417 and s 501J).
The guidelines also set out circumstances where cases should not be brought to the Minister’s attention. None of those specified circumstances apply to this matter.
The applicant’s personal circumstances are that she was born and raised in Vietnam, speaks Vietnamese, has previously worked in Vietnam, and has not claimed to have any health issues or psychological issues. However, the applicant and [Son A] both gave consistent evidence that the applicant has been the sole care giver for [Son A] throughout his life. [Son A] is an Australian citizen, is now [age] years old, and is studying [a vocational course]. He told the Tribunal that he does not have a partner, and he lives with the applicant. He said that the applicant is his support person, and he cannot imagine his life without her. Neither he nor the applicant claims that he is a dependant, but he told the Tribunal that he is now old enough to sponsor his mother for another type of visa and wants to do so if that is allowed.
The applicant spoke of the bond she shares with her son and her fear that they will be separated. [Son A] told the Tribunal that he has never been to Vietnam. [Son A] has lived his whole life in Australia with his mother and the prospect of separation now is no doubt distressing and confronting for both. This is exacerbated because the applicant faces separation from her only child at a time in her life when she is growing older (she is presently aged [age]), has no close family in other areas of Vietnam who she could return to, has limited work experience and education there, has limited work experience from her time in Australia that she could use to her advantage in Vietnam, and will, in the Tribunal’s view, face challenges obtaining work and supporting herself because of her age.
The Tribunal also considers it relevant that she has not lived in Vietnam for 23 years and the majority of her siblings, including her elderly mother, live in Australia or [Country 1].
The applicant concedes that she overstayed her visitor visa. The Tribunal notes that [Son A] was born [not long] after her arrival. Her evidence is that she believed [Son A’s] father was going to sponsor her for a partner visa, but he did not do so, and she has not seen him since. She was left to raise [Son A] on her own. Her evidence is that she was helped by her family here and did not work until she obtained permission to work with her current bridging visa. There is no information before the Tribunal indicating that she has breached any other visa conditions, immigration laws, or other laws or requirements in Australia. The Tribunal has nothing before it casting doubt on her evidence and notes that her overstaying may be explained partly by her desire to raise her child, and there is no evidence that she remained to work or engage in any other activities here.
The Tribunal has considered the applicant’s case and the ministerial guidelines and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:  27 August 2025
Representative:  Dr Ngo Tung Bao (MARN: 0006620)
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.
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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.
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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.
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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.
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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