2015001 (Refugee) - [2025] ARTA 1427

2015001 (REFUGEE) [2025] ARTA 1427 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015001

Tribunal:General Member G Simm
Date:13 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 13 March 2025 at 1:26pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan shark – physical assault – loans repaid – period of unlawful residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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 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 19 November 2019. The delegate refused to grant the visa on 29 September 2020.
The applicant appeared before the Tribunal on 28 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was unrepresented in relation to the review.
BACKGROUND
The applicant is [an age]-year-old man born in Saigon, now Ho Chi Minh city, Vietnam. He identifies as being of Viet ethnicity and a Buddhist.
His mother lives in Dong Thap and his father has passed away. His mother lives with [specified family members]. The applicant’s [other siblings] live by themselves. All [the siblings] are [occupation 1s]. The applicant had an older [sibling] who passed away. The applicant’s [remaining sibling] is an Australian citizen through marriage and [lives] in Sydney. [Occupation specified.] He is in contact with [that sibling] by phone on a monthly basis but has not seen [that sibling] for a few years.
The applicant’s wife and his [children], born [in respective years], live in [Town 1] in the Mekong delta in Vietnam. One [child] is [an occupation 2] and the other [an occupation 3]. One [child] is married and has [children] and the applicant’s wife lives with them. The applicant contacts them by videocall through social media.
The applicant lived in Saigon until [specified year] then moved to the countryside but he often visited Saigon as he couldn’t do farm work. He left school in the middle of [grade] as his family did not have the money for him to go to school. After that, he worked as a labourer, moving sand and carrying [beams].
In 2008, he arrived in Australia on a Visitor visa for three months sponsored by his [sibling] and then returned to Vietnam.
In September 2013 he arrived in Australia on a Visitor visa for one month sponsored by his [sibling] who needed his support [while undergoing a] divorce. He overstayed his one month visa and went into hiding.
In Australia he has been doing farm work in [various locations]. He is currenting working in [Town 2] where he shares a house with five people. He sends money to his family every few months.
Evidence before the Department
In his protection visa application, the applicant claimed that he had been working in a [business 1] for ten years when an agent offered him the chance to work in Australia. He had to borrow money from an unlicensed credit company but the agent disappeared and he realised that he had been cheated. The agent blackmailed him and sent gangsters to ‘punch’ his car. The agent threatened violence against him and his family. His house was painted with red paint and the windows broken. He did not report it to the police as he did not see the point and he was worried the agent would harm him if he did. He could not repay the loan so he borrowed money from family and friends and ran away to Australia. He provided a copy of his passport in support.
The Minister’s delegate did not invite him to interview and refused his application. She found that he was not a refugee as he did not fear harm for a refugee reason. She found that there was not a real risk that he would suffer significant harm so he was not eligible for complementary protection.
Evidence before the Tribunal
At hearing, the applicant gave evidence that he did not know what was in his protection visa application form as he had paid someone to fill it out. When I read the claims to him, he said that they were wrong. He had never worked in a [business 1] and had come to Australia to support his [sibling] who was going through a divorce.
When asked why he did not want to return to Vietnam, the applicant replied that he had difficult financial circumstances but that he could not stay in Australia forever. He would return in one year when he had saved enough money and to reunite with his family. When he was in hiding he hadn’t been able to make much money. After he applied for a protection visa in 2019, he could work.
Before leaving for Australia, he had borrowed some money from the Vietnamese government and from his siblings so his [children] could go to university. One [child] did not finish university because of financial difficulties and [became] [an occupation 3]. [Another child] did not start university and became [an occupation 2]. The applicant had since repaid all the loans and had not borrowed money from anyone else.
When asked where he would live when he returned to Vietnam, the applicant replied that he would live with his wife, [with one child] and the latter’s [spouse] and children. It was difficult for older people to find a job so he would go home and look after his grandchildren. He would like to run a small business.
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.
FINDINGS AND REASONS
The issue in this case is whether the applicant is entitled to a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings
The applicant provided the Department with a copy of his Vietnamese passport. On that basis, and given the delegate had no concerns about his claimed nationality, I accept that the applicant is a national of Vietnam and have assessed his protection claims accordingly.
I accept the evidence given by the applicant at hearing as credible. Where an applicant makes a new claim that was not before the primary decision maker, the Tribunal must draw an adverse inference about that new claim unless the applicant has a reasonable explanation. I accept the difficulties facing applicants for protection in navigating a complex migration system in a foreign language without qualified representation. At hearing, the applicant was forthright about having been unlawful and having gone into hiding so that he could work in Australia. These matters are adverse to his claims, which suggests that they are true. I have therefore declined to draw an adverse inference in relation to the new claims but have assessed them on their merits.
I accept that the applicant’s reason for coming to Australia in 2013 was to support his [sibling] while [going through a] divorce and that his reason for not wishing to return to Vietnam was that he wanted to work and save money in Australia. I accept that he has not experienced harm, nor does he fear harm, from unlicensed creditors or gangsters sent by them in Vietnam and that he has repaid the loans he took from the Vietnamese government and family members. I accept that he would like to work in Australia for another year so that he can save more money before returning to Vietnam.
Does the applicant satisfy the refugee criterion for protection?
Under s5J(1)(b) of the Act, the applicant has a well-founded fear of persecution if there is a real chance that, if he returned to Vietnam, he would be persecuted for a refugee reason (race, religion, nationality, membership of a particular social group, or political opinion: s5J(1)(a)). A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.[1]
[1] Chan v MIEA (1989) 169 CLR 379.
‘Serious harm’ is defined inclusively through the following indicative examples in s5J(5):
(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.
The applicant would like to save more money before he returns to Vietnam; however, he has not claimed to fear any form of serious harm. I have nevertheless considered whether he might face serious harm in the form of significant economic hardship that threatens his capacity to subsist.
According to the country information, the current age of retirement for men in Vietnam is 61 years.[2] The applicant would likely be ineligible for a pension, as he has worked in the informal sector.[3] In any case, social assistance, including cash allowances, concessions and subsidies are insufficient to live on.[4] The government of Vietnam is working to expand welfare coverage and increase payments,[5] although none of the changes so far undertaken, such as reducing the number of years contributing down from 20 to 15 to qualify for a pension, would benefit the applicant.
[2] DFAT, Country Information Report Vietnam, February 2025 [DFAT 2025], 2.23
[3] Ibid 2.22.
[4] Ibid 2.25.
[5] Ibid 2.29.
The applicant is [age] years old and has not completed secondary school. I accept that it may be difficult for him to find work given his age and that, if he does find work, he would not earn as much as he could as a farm worker in Australia. However, it does not follow that there is a real chance of serious harm to the applicant if he returns to Vietnam. At hearing he gave evidence that he would live with his family when he returns to Vietnam. He remains in regular contact with them and sends them money from Australia. In addition to his wife and [his child’s] family, he has another [child] and [specified siblings] with whom he remains in contact. There is nothing to suggest that he would be homeless or destitute to the extent that his capacity to subsist would be threatened.
As I have found that the applicant does not face a real chance of serious harm if returned to Vietnam, he does not meet the requirements of s5J(1)(b) of the Act. He therefore does not meet the refugee criterion.
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, the Tribunal notes that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Applying SZQRB to the applicant’s circumstances, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), in Vietnam.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  28 February 2025
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.
…