2015228 (Refugee) - [2025] ARTA 1491

2015228 (REFUGEE) [2025] ARTA 1491 (8 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Representative: Dr Nathan (Nam) Le
Ms Paris Nguyen

Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015228
Tribunal:General Member R Hampson
Date:8 April 2025

Place:Brisbane
DecisionThe Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that that each applicant meets the following criteria:
·s 36(2)(a) of the Migration Act (1958) (cth).

Statement made on 08 April 2025 at 2:33pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – survivors of family and gender-based violence – wife/mother and young adult children’s fear of harm from husband/father – psychological, emotional, physical and financial abuse – physical injuries and mental health – found and forced to return home after moving away – inaction by local authorities and delays and bribery during divorce proceedings – continuing harassment and threats to oldest child in home country – age and employment prospects – brief claims and evidence in application before extensive information and submissions by new representative – medical records and supporting statements – consistent and compelling evidence – country information – family and gender-based violence – divorce, employment and social welfare – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (2), (3)(c), (4)(a), (c), (5), 5LA, 36(2)(a), 65, 367A
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

The three applicants who claim to be nationals of Vietnam arrived together in Australia [in] August 2018 each on a Visitor visa and the first applied for a Protection visa (Class XA, Subclass 866) on 21 January 2019.
The first applicant made the primary claim in the protection visa application. The second and third applicants were listed as members of the same family unit as defined in s 5(1) of the Migration Act 1958 (Cth) (the Act).
On 30 September 2020, a delegate for the Minister for Home Affairs refused to grant the visas under s65 of the Act.
The applicants applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the 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 a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Background
The first applicant who was born in [Year], is a national of Vietnam. The second applicant, who was born in [Year], is a national of Vietnam. The third applicant, who was born in [Year] is a national of Vietnam. The second and third applicants are the adult children of the first applicant. It is noted in the materials the third applicant is referred to as the daughter of the first applicant. The third applicant is transgender and identifies as male and this is noted for the purpose of clarity in reading the following material.
Evidence before the Department
Protection visa application
In the protection visa application dated 21 January 2019, the first applicant’s claims are summarised below:
a)She and her children, the second and third applicant, were beaten up by her ex-husband, (referred to as [Mr A]) with this abuse peaking in [Year] with the birth of their youngest child, the third applicant.
b)She and her children were publicly beaten, and this was witnessed by others.
c)She moved away with her three children to another district and to Ho Chi Minh city, but [Mr A] found them each time and forced them to return home.
d)If they moved around anywhere in Vietnam, [Mr A] would locate them.
e)Her children could not find work because of the harm by [Mr A].
f)She often had bad dreams and vomited because of the stress.
g)She and her children had many visits to the doctors because of the insomnia but did not feel better.
h)Her son, the second applicant, was afraid to go outside and have any contact with outsiders because of his distrust of society.
i)[Mr A] is wealthy and has bribed all levels of government officials to force her into failure.
j)The first applicant cannot relocate or be away from her home province for too long a period as [Mr A] can bribe the officials to find them.
k)The household registration system means she must return to her home province in Vietnam and face [Mr A] who still resides there, and this is like returning to hell because of the psychological torment and physical abuse.
The applicants provided the following documents to the Department in support of their application:
·The passport details of the three applicants.
·The second and third applicant relied on the protection claims made by the first applicant.

10. The applicants were invited to provide additional information about their claims under s 57 of the Act via a letter dated 26 June 2020 inviting them to comment on the following points:
a)Prior to your departure from Vietnam, you, the first applicant, were the owner of an ongoing business, which was established in 2004.
b)Prior to their departure from Vietnam, the second applicant was a director of a company ‘[Company 1].’

c)Prior to their departure from Vietnam, the third applicant was the owner of a [business].

‘This information is relevant because it suggests that you and your children, the second and third applicants, were employed prior to your departure from Vietnam. This information is inconsistent with your claims for protection and could lead to an adverse credibility finding which may result in refusal of the application.’[1]
[1] Department of Home Affairs, Invitation to comment on information for a protection visa, dated 26 June 2020
11. The first applicant responded to this invitation on 24 July 2020 and that response is summarised below:
a)The first applicant leased some land to grow [produce] trees and this land is now owned by her ex-husband, due to the divorce property settlement.
b)The first applicant owned a business called [Business name 1] from 2024 to November 2017.
c)The first applicant gave this business to her daughter, the third applicant, and the name was changed to [Business name 2]. The third applicant traded the business until August 2018 upon her departure to Australia.
d)Tax officials came to the first applicant’s house to do the paperwork for the official transfer of the business to her daughter, the third applicant.
e)Her son, the second applicant, ceased being a director of the company ‘[Company 1]’ on 10 August 2020.
Department Interview

The applicants were not offered an interview with the delegate.
The delegate’s decision

13. On 30 September 2020, the delegate found that the first applicant is not a refugee as defined by s 5H(1) of the Act and is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate was not satisfied the first applicant was a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act. The delegate therefore refused the first applicant’s claims for a protection visa.
14. The delegate also found the second and third applicants who claimed to be members of the same family unit as defined in s 5(1) of the Act, were also not refugees as defined by s 5H(1) of the Act and were therefore not persons of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act.
Evidence before the Tribunal
15. On 13 October 2020, the applicants applied to the AAT for a review of the delegate’s decision.
16. On 28 June 2023, the first applicant, via their representative, filed a Freedom of Information request to access AAT documents. Partial access was granted on 27 July 2023.
Pre-constitution submissions
17. On 31 October 2024, the applicants were sent a pre-constitution outreach form to which they provided a response on 6 November 2024. This response is summarised below:
a)The first applicant claims she was a victim of family violence at the hands of her ex-husband [Mr A] to whom she married in 1982 and had three children, two of whom are included included in her application for a protection visa. These are the second and third applicants.
b)The first applicant and her then husband lived happily for 2 years and then he started drinking, smoking and adultery and the domestic violence commenced.
c)[Mr A] would come home excessivley drunk and physically abuse anyone he saw first – choking, kicking, beating, pulling hair or slapping.
d)The first applicant was forced to work at their business for hours without a break as if a slave.
e)If there were complaint from customers, [Mr A] would beat the first applicant in front of the staff, malnourish her and prohibit anyone from feeding her until he allowed.
f)[Mr A] would demand the children, including the second and third applicant, kneel for a few hours beside his bed while he took a nap and if he woke up and they had collapsed he would beat them.
g)The cognitive function and intelligence of the first applicant’s eldest son [Mr B] (not a part of this application and decision) became impaired.
h)The first applicant tried to file for divorce and [Mr A] refused.
i)The first applicant tried on numerous occasions to seek protection from local authorities but they refused to take action because [Mr A] was a significant influence in their town of [Town].
j)[Mr A] bribed the local court and the applicants lawyer to delay the divorce process.
k)When the first applicant broke up with [Mr A] he sent a gang of thugs to threaten her and her children, including the second and third applicant.
l)[Mr A]’s gang watched the first applicant’s daily activities, tracked her whereabouts and suppresed her livelihod by beseiging her business premises and banging on her roof at night so she could not sleep.
m)The first applicant lived in constant fear and took two of her children, the second and third applicant and ran away. [Mr A] bribed local authorites to access a national database to find her updated address.
n)[Mr A] then came to the first applicant’s new home and harassed and phsycially assaulted her and the second and third applicants.
o)The first applicant fears if she returns to her home country [Mr A] will kill or torture her, capture her and prevent her from making a livlihood.
p)The first applicant’s oldest son, who still resides in Vietnam, has told her that [Mr A] is still looking for her and threatens him to disclose her current whereabouts.

Pre-hearing submissions
18. On 10 January 2025, the applicants were sent a hearing invitation with the capacity for them to provide further information. On 19 January 2025, the Tribunal received the applicants’ hearing response form where they provided a list of 6 witnesses for the hearing.
19. On 10 February 2025, the Tribunal received the following pre-hearing submissions:
a) A 30 page legal submission from the applicants’ legal representative, Dr Le, dated 10 February 2025.
b) A comprehensive 15 page Statutory Declaration signed by the first applicant on 4 February 2025. This is a lengthy document including further information and detail with regard the first applicant’s claims and is extracted below in her words below:
MY BACKGROUND
(i)The following is a summary of my claims for protection. It is not an exhaustive statement for the reason or reasons why I cannot return to my country of origin. I will provide further information and document in relation to my protection claims during my interview or before a decision is made by the Tribunal.
(ii)In this statement, I wish to collaborate my reasons for claiming protection which has been submitted to the Department on 21 January 2019. I wish to declare that my statement included in the initial application for a protection visa was insufficient and lack material details about my genuine claims for protection, it was merely a generic statement prepared by my previous legal representative.
(iii)In the following, I wish to state the detailed reasons why I could not return to Vietnam and had to apply for protection in Australia after I engaged a new lawyer to represent at the Administrative Appeals Tribunal hearing.
(iv)I am a [Age]-year-old female citizen of Vietnam. I was born in [Town], Vietnam. My date of birth is [Date]. Please refer to the attached passport and Vietnam national ID Card Before coming to Australia, I lived at [Address 1], [Hamlet 1], [Commune 1], [District 1], Tay Ninh Province, Vietnam.
(v)I am divorced. My ex-husband, [Mr A], born in [Year], still resides in Tay Ninh province, Vietnam. I married [Mr A] in 1982 and divorced in 2017. I have two sons and one daughter. My eldest son, [Mr B] was born on [Date]. My second son, [the second applicant] was born on [Date]. My daughter, [the third applicant] was born on [Date]. [The second and third applicants] came to Australia with me [in] August 2018. They were listed as secondary applicants in my initial application.
(vi)[Mr B] is currently living in [Address 2], [Hamlet 1], [Commune 1], [District 1], Tay Ninh Province, Vietnam. He is married.
(vii)Prior to travelling to Australia, I was a business owner in Vietnam. Our family-owned business was involved in [produce task], and we also operate several shops that sell [products] made from [materials], and so on.
(viii)Before obtaining work rights in November 2023, I was unemployed and living from my savings and financial support from my friends back in Vietnam. Since the Department granted me a Bridging C visa with work rights, I have been working as [an occupation] at a [workplace].
MY IMMIGRATION HISTORY
(ix)On 3 July 2018, I was granted a Tourist Visa (Subclass 600). I departed to Australia on [Day 1] August 2018 and arrived in Brisbane on [Day 2] August 2018.
(x)On 13 December 2018, I lodged an application for Protection Visa (Subclass866). On 15 January 2018, my application was assessed as invalid as I have not provided my personal identifiers, and as the Minister has not waived the operation of section 46(2A) in relation to my application.
(xi)On 21 January 2019, I re-lodged a valid application for Protection Visa (Subclass 866).
(xii)On 29 January 2019, I was granted a Bridging visa C with a "No Work" condition.
(xiii)On 26 June 2020, I was invited by the Department to comment on my children's businesses in Vietnam. In response, I provided a statutory declaration dated 23 July 2020.
(xiv)On 30 September 2020, my application for a Protection Visa was refused.
(xv)On 13 October 2020, I applied for a merits review at the Administrative Appeals Tribunal. On 26 February 2021, I applied for a change of conditions on my Bridging Visa C. On 3 March 2021 , the Department refused this request.
(xvi)In June 2023, I engaged a new legal representative to assist with the merits review process. My new representative then reapplied for a change of conditions on my Bridging Visa C.
(xvii)On 20 November 2023, I was granted a Bridging Visa C with work rights.
(xviii)During my travels and stays in Australia, I have always complied with all conditions on my visas, and I have always respected Australian laws.
(xix)Apart from Australia, I also travelled to [Countries 1 and 2] on Tourist Visa in October 2017. I also applied for Tourist Visa to [Country 3], but it was refused in February 2018.
MY MARRIAGE WITH [MR A]
(xx)[Mr A] and I got married [in] August 1982 at People’s Committee of [Commune 2] [District 1] (now called [Ward], [Town]) on a voluntary basis. We have lived happily for around 2 years before [Mr A] began to inflict violence upon me whenever we had disagreements. Despite my effort to repair the marriage, he continued to abuse me physically and emotionally.
(xxi)Since 1988, [Mr A] and I operated a [business] directly from our home. At that time, [Mr A] was [an occupation 2] in [District 2], Over the years, we managed to save a sum of money which was kept by me, around 1994, I gave [Mr A] 26 million Vietnam Dong and six months later, further 19 million Vietnam Dong to execute a lump-sum contract for [produce] tree leasing with [Company 2]. The total area of the land was [Area] hectares. At the time of the contract signing, the trees were about 4 years old. A year later, they started to yield [produce].
(xxii)[Mr A], however, did not bring the profits from the [produce task] to support our family; but instead used to purchase land for personal benefit. Upon my discovery of a substantial disparity between the income generated from the [produce] business and the amount expended for land acquisition, I casted doubt on [Mr A]'s truthfulness and loyalty. Furthermore, he lied to me on a daily basis and attempted to transfer the title of all these properties to his name, therefore I no longer held trust in him.
(xxiii)Due to the downward spiral of wealth, [Mr A] started to indulge himself in drinking alcohol. His excessive drinking was the root cause for further tension and arguments between us. He often returned home intoxicated and under the influence of alcohol, he regularly beat up, struck, or slapped me in the face. I had my head slammed down on numerous occasions to the extent that my mind went blank for a few days. Fearful for my life, I sometimes had to hide under the bed and only went out when [Mr A] left the house.
(xxiv)The acts of physical violence from my ex-husband had only increased in intensity and frequency with time and escalated in [Year] when I was pregnant with my youngest child. Prior to that, I had already given birth to two sons. [Mr A] was told by a fortune teller that our family's fortune would be magnified with the birth of a daughter He thereby coerced me into taking Estrogen pills during my pregnancy to modify my then-unborn child's gender, this medication adversely affected my youngest child's hormone and sexuality.
(xxv)As a typical Vietnamese woman, I was reluctant to file for divorce at first because I believed being raised in a family with both parents would be optimal for my children's development. I thought keeping silent ensured a peaceful childhood for my children and protect them from being embarrassed and bullied for having divorced parents,
(xxvi)I also concerned about stigma and the shame associated with domestic violence. In an extremely patriarchal society like Vietnam, women are often victim-blamed for domestic violence caused by their spouses. As I came from a remote rural community where people had limited access to legal education and remained rooted in traditional, conservative beliefs, they think that a woman deserves violence if she has not been a good wife and disobeyed her husband.
(xxvii)Not only [Mr A] played no role in raising our three (3) children, but also abused them. He beat everyone in the family, from the eldest down to the youngest, whenever he becomes agitated. From the time my children were very young, they also endured relentless mistreatment and oppression by their father. He isolated them, leaving them without friends, relatives we could turn to, or any form of support. He took control of every aspect of our children's lives, depriving them of the simplest joys of childhood. My children were not allowed to leave the house for anything other than school, and the moment they came home, they were locked in their rooms. He forbade them from reading cosmic books or taking part in any recreational activities. Time after time, my children and I felt as if we were living in hell with thin fine line between life and death. It led to severe depression for them at a young age, please refer to the attached statutory declaration of my eldest son [Mr B].

(xxviii)I recalled one time, my oldest son [Mr B] failed a grade, he was made to kneel at the entrance of the house to be humiliated in front of all the workers and customers. [Mr A] then placed shoes on both his ears and would hit him on the side where the shoe fell off. [Mr B]'s ears went numb for a week after enduring such treatment. On another occasion, [Mr A] used a big ruler, intending to hit my children. When I tried to intervene to protect them, I broke both of my arms.
(xxix)When my oldest son went away to university, he tried to avoid coming home during breaks. However, because I was still financially supporting him, he felt obligated to return for Lunar New Year. While his peers were eager to visit their families, he and his brother delayed their trips until the last possible moment. Even then, they chose to stay with their grandmother rather than face their father's wrath.
(xxx)After my oldest son graduated from university, my ex-husband forced him to return to our hometown to work under one of his friends at [Employer], someone [Mr C]. From what my son explained to me, this "friend" never paid him, regularly insulted him, and treated him like a menial servant. All of this was done under my ex-husband's orders.
(xxxi)My ex-husband also deceived [Mr B] into purchasing an insurance policy, claiming it was for our son's benefit. [Mr A] listed himself as the sole beneficiary without [Mr B]'s knowledge. Consequently, after years of my son paying premiums, my ex-husband intended to take all of the insurance money.
(xxxii)Meanwhile, my other son, [the second applicant], graduated with a bachelor's degree in [subject] and faced relentless obstacles in securing employment. [Mr A] wielded his power and wealth to sabotage his job prospects by corrupting potential employers, ensuring that my son remained jobless. My ex-husband disturbance extended to [the second applicant]'s personal life. He demanded his gang to stalk and disrupt [the second applicant]'s relationships, repeatedly sabotaging his chances at finding companionship. Consequently, he was left isolated, unable to maintain any meaningful romantic relationships. I felt as though he had turned himself into a monster losing all his sense and rationality of a human being, let alone a husband and a father.
(xxxiii)The abuse did not just affect me, it traumatized my children beyond repair. They became fearful, withdrawn, and unable to communicate with others. They lived in constant fear, afraid to even meet family members. At a family gathering, my children refused to attend and did not dare step out of their rooms. Even my brother, who had only visited Vietnam once every 6-7 years, saw how my children hid from him. All of them had difficulty of forming meaningful relationship with others. Please refer to the prescription forms for [the second and third applicants].
(xxxiv)After getting married, [Mr B] distanced myself from his father. However, my ex-husband continued harassing our son in his own home by frequently showing up at their house to threaten, publicly humiliate both me and my wife in front of neighbours and passersby and disrupt our lives. His wife, despite her own fears, would confront him to protect their children and family. Despite being a grown adult with two (2) children, [Mr B] is terrified of his father and remains deeply traumatized from being beaten by his father since childhood. Whenever [Mr B] sees him, he runs away in fear. Although my son wants to distance himself, he feels trapped in [Town] because of his wife, children, and limited options for work,
(xxxv)In 2013, I became aware of [Mr A]'s infidelity with a few other women, including, [Ms D]— [Workplace 1] Owner—[Address 3], [Town]. [Ms E] — Work at [Shop 1] — [Address 4], [Hamlet 1], [District 1], [Town]. [Ms E] is [Mr A]'s sister-in-law. They have been committing adultery since 2001.
(xxxvi)Despite going through a marriage filled with physical and emotional abuse, I still wanted to keep the family together. I tried to forgive [Mr A] and give him a chance to return to the family. The final straw was when I found out that [Mr A] had bought land and built house for his mistress. I concluded that I had enough of all emotional and physical suppress which I had endured over three decades.
(xxxvii)I initiated divorce in 2013 but [Mr A] resisted, He did not repent and even became more aggressive and violent to me. He even hired a thug's gang to harass, attack and threaten me and my children. They monitored my every move, controlling my finances and ensuring that I had no independent source of income.
(xxxviii)On my ex-husband's side, everyone worshipped him because of his prosperity. They even incited more conflicts by humiliating and harassing me. Our neighbours were also hesitant to side my children and me because they did not want to frustrate my ex-husband.
(xxxix)At that time, I was managing our family's [store]. [Mr A] provided capital for his gang to open similar businesses that surrounded, paid competitors in my trade to undercut my business, making it impossible for me to make a living. [Mr A] attempted to make me financially dependent on him so that he could manipulate me. The adjacent business entities that have contributed to this environment of oppression are as follows:
[Ms F]: [Mr A] funded her to open [Shop 2] which located adjacent to my residence. [Address 5] , [Hamlet 1], [Commune 1], [District 1], [Town].
[Mr G] — brother of [Ms F]: [Mr A] funded him to open [Shop 2] which situated diagonally from my residence. [Address 6], [Town].
[Ms H] and [Mr I]: [Mr A] funded them to open [Shop 3]. [Address 7] , [Town]
[Ms J] — [Mr A]s mother and [Ms K] — [Mr A]'s younger sister: [Mr A] funded them to open [Shop 4]. [Address 8], [Hamlet 1], [Commune 1], [District 1], [Town].

(xl)Meanwhile, [Mr A] intentionally prolonged the court case by using his financial resources to manipulate the system. His goal was to push me to withdraw my divorce application by making it financially impossible for me to continue. He used his wealth and influence to ruin me by bribing [produce] traders for them to refuse to purchase from me cutting off my source of income. His plan was for me and my children to lose everything, to be left homeless and destitute, as a result, I suffered financial devastation and psychological abuse at the hands of my ex-husband.
(xli)I stayed with my brother- [Mr L] ([DOB]) and his wife - [Ms M] ([DOB]) for nearly a year during the court proceedings. To sustain myself and my children, I had to borrow money from my siblings and even mortgage my house to the bank.
(xlii)In particular, in 2014, I borrowed 250 million Vietnam Dong (approximately 11,900 USD at the time) from [Mr L] and [Ms M]; and my other sibling — [Ms N] ([DOB]) and her husband — [Mr O] ([DOB]) sent money from [Country 4], totalling 850 million Vietnam Dong (approximately 38,600 USD) to help me survive during this difficult time. Please refer to the attached statements provided by [Mr L], [Ms M], [Ms N] and [Mr O].
(xliii)During these years, my children and I were still randomly attacked, leading us to be admitted to the hospital for soft tissue injuries and bleeding abrasions. Please refer to the attached Discharge Summary and prescription forms for [the second and third applicants] dated 21 August 2015, and Discharge Summary for myself dated 3 May 2016. In December 2015, [Mr A] even had people spy on me and my children by placing people on the roof to eavesdrop. Out of fear for our safety, my brother sent me a full surveillance camera system to monitor our home. Please refer to [Ms N] and [Mr O]'s statement.
(xliv)By May 2017, I was forced to sell my land to repay my debts’. It was not until August 2017 that my divorce matter was finalised. Exhausted by the prolonged divorce proceedings spanning four years, I lost my fervour for asset division. My only aspiration was to conclude this torturous marriage and life and live peacefully with my children.
(xlv)During the final court hearing, my ex-husband denied all the allegations of domestic violence. He attributed the estrangement of our family to my paranoia about him having extra-marital affairs. Please refer to the divorce decision. I thought the tragedy I had suffered had come to an end after the divorce.
(xlvi)Even after the divorce, I had lost nearly everything, but my ex-husband would not let me go so easily. My ex-husband and his gang continued to harass and sabotage my attempts to make a living. When my children and I relocated to another area to restart our life, [Mr A] continued to show up to our places, harass and threaten to kill us.
(xlvii)In November 2017, I transferred the business to my daughter, [the third applicant], hoping that [Mr A] would show mercy to us and cease his destructive actions, considering that [the third applicant] is his biological daughter. I held expectation that [Mr A] would appreciate the bond between father and child.
(xlviii)Nevertheless, the gang he employed consistently besieged the [shop], often climbed up and banged the rooftop during the nights, caused disturbances, or broke in during the night. Over time, no customer dared to buy from my shop or even approach us anymore. These collective actions have created a pervasive environment of intimidation, suppression, and economic detriment, severely impacting my ability to sustain a livelihood.
(xlix)As a result, I had to borrow money from my siblings in [Country 4] to survive. From November 2017 to August 2018, [Ms N] and [Mr O] lent me a total of 80 million Vietnam Dong (equivalent to approximately 5,260 USD at that time). Please refer to the attached statement provided by [Mr N] and [Mr O].
(l)Three decades of being subject to horrendous abuse has taken a severe toll on my physical and mental health. My ex-husband used to make me work relentlessly in the shop, and if there was any delay in serving customers, he would beat me up in front of the employees and customers and starve me until all the orders were done. Consequently, I now suffer from severe stomach-ache after years of being forced to work under brutal conditions.

(li)Throughout my marriage, I have endured ongoing insomnia, haunted by nightmares and hallucination. At that time, mental health services in Vietnam, particularly in smaller cities like my hometown, were unavailable. Even if such services had been available, my limited financial means would have made accessing professional help impossible. In practice, the only option I had to cope with my distress and sleep issues was to consult a doctor for prescription sleeping pills and anti-depressant, please refer to the attached statement provided by [Ms P],
(lii)After I left Vietnam and moved to Australia, I hoped that the harassment from my ex-husband would end and he would leave our children alone. However, as my son later informed me, my ex-husband continued to threaten our son, disrupted his ability to earn a living, and used psychological pressure aimed at forcing me to return to Vietnam.
(liii)According to my son, whenever my ex-husband arrived unannounced, he was too terrified to confront him. His wife had to stand in his place, despite her own fears, to protect their two children. I'm grateful that my daughter-in-law found the courage to shield the family. She was the one real emotional support my son had and the only buffer standing between his father's aggression and their two small children.
(liv)My ex-husband also bribed certain neighbours, especially those operating the local [shop] so they will harass my son — [Mr B], and my daughter-in-law. They purposefully make it difficult for my children to run their small business, to the point that my son, who already struggles with anxiety and depression, has felt hopeless, He has confided that without his wife's emotional support, he might have ended his life.
(lv)In addition, [Mr A] shifted his focus to my brother, [Mr L], who had supported me during my struggles. In 2019, [Mr A] purchased a plot of land adjacent to my brother's property at [Location]. His sole purpose was to harass and sabotage my brother, mocking and provoking him. This harassment stems from two clear motives: to revenge against my brother and others who helped me during my divorce; and secondly, to make me feel heartbroken and guilty, hoping that I would return to Vietnam to stop the harassment and protect my family.
(lvi)This continuous cycle of abuse has left lasting scars not just on me, but on my children and my entire family. It is a painful reminder of the lengths my ex-husband will go to exert control and inflict harm, even after I have left his reach.
(lvii)I am afraid to return to Vietnam, which is my country of origin and nationality. I do not have the right to enter and live in any other
(lviii)I left Vietnam for Australia to escape the verbal and physical violence perpetrated by my husband.
(lix)I fear that my ex-husband, [Mr A] will kill me or subject me to further torture. He remains extremely resentful that I left him and took our children to Australia. There is a strong likelihood that, once I am back, he would also hold me captive to ensure I never try to leave again. His relentless harassment, coupled with how violently he acted over the course of our marriage; makes me believe my life would be in imminent danger should I return.
(lx)The mere thought of my time in Vietnam induces physical reactions, such as vomiting. The trauma has left me with an enduring sense of being followed, even in Australia, haunting me and impacting my overall well-being. To this day, hearing that man's voice terrifies me, and I still have nightmares reliving the sight of him grabbing me by the hair and beating me. I never want to see such a cruel and horrible ex-husband again. Every time I think of being forced to return to Vietnam, I felt horrible not knowing what would happen to me and my children.
(lxi)I fear that my ex-husband — [Mr A] will harm or mistreat me and my children. He has a long history of violence, threats, and harassment, Moreover, I fear that the gang members he employs and finances would also pose a threat, as they have previously been used to intimidate me, destroy my property, sabotage my business, and track my whereabouts.
(lxii)Additionally, [Mr A]’s family and close associates, who openly humiliated and harassed me in the past, could also contribute to the mistreatment. Given [Mr A] 's influence and financial power, these individuals might join him in further tormenting me.
(lxiii)Through video calls with my son, I learned that [Mr A] is still looking for me. [Mr B] stays in touch with me weekly to inform me whenever his father harasses him or goes searching for me, makes threats and demands that I return. Almost every day, sometimes both morning and afternoon, my ex-husband visits the home where my oldest son and his wife live and continues to threaten him and demand information about my whereabouts.
(lxiv)When my son told him that he did not know and begged [Mr A] to leave him alone, he causes loud disturbances, shouts insults, and draws the attention of neighbours’ and passersby. Through these public outbursts, he humiliates my son and daughter-in law, causing them tremendous stress and anxiety, He repeatedly hurls threats about what he will do if I fail to return and beg his forgiveness. According to my son's reports, he has said things like:
"If she dares return, she won't live in peace. Even if she hides in Ha Long Bay, I'll dig up her ancestors' graves. I hold a grudge like a leech, obey me and live—oppose me and die—because I have money. Don't say your mother worked hard for me to enjoy; I'm smarter, / invest. Foolish people suffer. People get ahead by seizing opportunities, and I'm the one with power, status, and influence. Your mother and all of you can’t beat me You're just hiding in a foreign land; if you dare to show your face here, you'll see what I can do. "

(lxv)Such words instil constant fear in my children and me. It is clear he aims to force me back to Vietnam under his control or punish me if I refuse.
(lxvi)On numerous occasions, I sought assistance from local authorities by reporting each instance of physical and emotional abuse inflicted upon me by my ex-husband. However, the local authority refused to address the issue as [Mr A] had bribed all of them and held significant influence in [Town]. Whenever I sought help, they would contact [Mr A] to come and pick me up. The local officers have consistently obstructed me whenever I required legal documents or self-protection, including: In [Hamlet 1], [Commune 1], [District 1], [Town]; [Mr Q] — Head of [Hamlet 1]; [Mr R] — Local Police; [Mr S] — Local Police. I brought the case to the attention of higher authorities, including: [Mr T] — People's Committee of [Commune 1]. He conspired with [Mr A] to take ownership of our shared properties. [Mr U] — Secretary of the People's Committee of [Commune 1]; [Mr V] — Citizenship Officer of the People's Committee of [Commune 1]; [Mr W] — Citizenship Officer of the District People's Committee of [District 1]. At [District 1] District People's Court: [Judge X] — His Honour was in charge of our divorce matter from 2013 to 2015. [Judge Y] — Her Honour handled our divorce matter from 2015 to 2017. [Judge Z] — He was in charge of our divorce matter in 2017. Having conspired with [Mr A], his Honour waited until [Mr A] disposed all our assets then listed our matter for a hearing in August 2017.
(lxvii)During the legal proceedings, I also sought legal assistance from lawyers. However, justice in Vietnam has never seemed to favour individuals who lack influence and resources. Those lawyers I turned to were also blinded by the power of money and made my situation even more challenging, including [Lawyer AA] of [Address 9], [Town]. He was influenced by [Mr A] 's bribery and refused to continue to protect me halfway through the legal proceedings; [Lawyer BB] of [Address 10], [District 1], [Town]. I engaged him to represent me during the divorce hearing, but he ended up changing his side to prioritize my ex-husband's interests over mine and breached his ethical obligations as a legal practitioner. [Lawyer CC] of [Address 11], [Town]. While investigating my case, he informed me that my ex-husband had bribed the court thus he was declined to provide me with legal protection.
(lxviii)I once initiated legal action in the Ho Chi Minh court, but they informed me that as my residential address was in [Town], my divorce matter fell beyond their jurisdiction and referred me back to the local court. Upon returning to [Town], I lodged complaints with the [District 3] Court, [ District 3] Prosecutor's Office, [District 4] Court, [District] Prosecutor's Office, [Town] Court, and [Town] Prosecutor's Office but received no response or resolution. This resulted in an endless cycle in pursuit of justice.
(lxix)Due to numerous failed attempts to seek state protection, I do not believe that the authority will protect me. They would treat my conflicts with my ex-husband as civil matter which should be dealt between parties. Vietnam has a very bad record of protecting women and children's rights. I felt hopeless as I could not rely on the authority or any organisation to protect my safety.
(lxx)Despite my son's efforts to report this behaviour twice to the [Hamlet 1] office, no action was taken; we learned that local officers there had accepted bribes from my ex-husband. My son followed up several times, but his complaints were ignored. In a desperate attempt to find help, my son escalated the issue to the [Commune 1] commune office. While they formally accepted his written statement and promised to investigate, it was merely lip service. No further steps were taken to protect him or our family.

(lxxi)I do not believe there is any safe place in Vietnam for me. [Mr A] has the means and the willingness to bribe officials everywhere, so even if I move to a different province, he can track me through the national residence database by paying local authorities for information.
(lxxii)Moving from one city to another is not sufficient, because I cannot permanently legalize my presence anywhere else without returning to [Town], where I registered my permanence residence, for paperwork. Please refer to the attached Confirmation of Residence dated 6 November 2024. There are no measures like intervention orders to protect me from him. Every place I have gone to in Vietnam, he has managed to find me. Therefore, I cannot think of any place where I could be free from persecution or harm anywhere in the country.
(lxxiii)From 20 July to 15 October 2017, my two children, [the second and third applicants], and I temporarily resided in [Mr DD] 's rental property in [Ward], [Town]. [Mr A] repeatedly came to the house, verbally abused, and physically assaulted my children and me. At times, he brought his gang to vandalize the property and issue an ultimatum that he would kill us if I did not come back to the area. The landlord reported these incidents to local authorities, but when the authorities arrived, [Mr A] and his gang had already left. Since [Mr A] was not a local resident, the local police did not pursue further investigation or resolution. The landlord provided a written statement as a witness. Please refer to the attachment.
(lxxiv)From 16 October 2017 to 25 February 2018, my two children and I temporarily resided in [Mr EE]'s rental property in [Hamlet 2], [Commune 2], [District 2], [Town]. [Mr A] found us and physically abused us on multiple occasions during this period. There were instances when he ambushed and assaulted me in public place. He threatened to kill me if I did not come back.
(lxxv)On 4 January 2018, I was physically assaulted and suffered from bleeding abrasions and soft tissue injuries. Please refer to the attached Summary Discharge dated 4 January 2018. Likewise, on 21 February 2018, my daughter [the third applicant] was assaulted so severely that she sustained soft tissue injuries and visible wounds. She was admitted to the hospital for pain relief and antibiotics and was kept under observation. Please refer to the attached Summary Discharge Note dated 21 February 2018. And then, in May 2018, my son [the second applicant] became the next victim of a serious physical assault. He experienced the same kinds of injuries and was admitted to the hospital for treatment and monitoring. Please refer to the attached Summary Discharge note dated 21 May 2018.
(lxxvi)I reported these incidents to the local authorities but by the time they arrived, [Mr A] had already left. Similar to the local police in [Ward], [Town], they stated that since [Mr A] is not a local resident, they could not resolve the issue. My eldest son, [Mr B], submitted a written statement of these incidents to the commune people's committee. Please refer to the attachment.
(lxxvii)My children and I attempted to escape the oppressive environment of [Town] and sought refuge in Ho Chi Minh City. However, my ex-husband relentless pursued us. He located us, demanded our return, and sought to maintain control over use even though our marital ties had been severed.
(lxxviii)Furthermore, I am [Age] years old, and finding any job in Vietnam is very difficult for someone my age. Most employers prefer younger workers who can stay in the job for many years and handle physical work. Because of this, older people like me are often ignored, even if we have experience. I do not have family or friends in other cities who can support me. If I cannot find a job quickly, I would have no money to survive.
(lxxix)Even if I were able to move, the types of jobs available for people my age would not provide enough income to cover rent, food, and medical needs. The jobs that sometimes hire older workers are not stable and do not pay well, without a stable job, I would constantly be struggling to make ends meet and may not be able to access the medical care I need.

c)   A translated joint witness statement of [Ms N], the first applicant’s sister and her husband [Mr O], dated 25 October 2024 which includes copies of both of their passports. This statement details financial transfers they made to the first applicant between 2013 and 2017 and commentary on the psychological harm they observed to the second and third applicants.
d)   A translated joint statement of [Ms L] and [Mr M], the first applicant’s younger sister, and her husband dated 1 November 2024 along with a certified copy of her Vietnamese registration identity card. This statement details the witnesses personal observations of the actions of [Mr A] towards the first applicant and money they lent her from 2014 until 2017.
e)   A translated 4 page witness statement of [Mr B], the first applicants’ oldest son, dated 21 October 2024 along with a copy of his Vietnamese registration identity card. This statement details the physical abuse [Mr B] suffered, as well as the physical abuse suffered by his siblings (the second and third applicants) and his mother, the first applicant, along with continuing harassment of him as an adult and his wife at the hands of his father, [Mr A].
f)    A translated witness statement of [Mr DD], the first applicant’s landlord in Vietnam, dated 28 November 2018. This statement details his account of witnessing [Mr A] abusing and assaulting the applicants, along with sending his gang to vandalise his rental property.
g)   An earlier translated Statutory Declaration signed by [Mr B], the first applicant’s oldest son dated 10 September 2018. This statement details his witnessing of the applicants being assaulted and abused by [Mr A].
h)   A translated Confirmation of Residence Information document for [Mr B], the first applicant’s oldest son, dated 6 November 2024. This document is relied upon to evidence the applicant’s residence in the [Commune 1].
i)    A translated pharmaceutical prescription form dated 21 August 2015 for the second applicant. The prescription is for sedatives, vitamins, and anti-inflammatory medications.
j)    A translated pharmaceutical prescription form dated 21 August 2015 for the third applicant. The prescription is for medications prescribed for insomnia and nervous exhaustion.
k)   A translated hospital discharge document dated 21 August 2015 for the third applicant. The document states treatment was provided for a beating for soft tissue injury, skin abrasions and bleeding.
l)    A translated hospital discharge document dated 21 May 2018 for the second applicant. The document states the admission was for soft tissue injury caused by assault, superficial abrasions, and bleeding.
m) A translated hospital discharge document dated 21 February 2018 for the third applicant. The document states the admission was for beating with soft tissue injury, skin abrasions and bleeding.
n)   A translated hospital discharge document dated 4 January 2018 for the first applicant. The document states the admission was for soft tissue injury caused by assault, superficial abrasions, and bleeding.
o)   A translated hospital discharge document dated 3 May 2016 for the first applicant. The document states the admission was for soft tissue injury caused by assault, superficial abrasions with bleeding.
p)   A translated copy of the first applicants divorce proceedings held on 3, 4, 7 and 8 August 2017. The document states the division of assets and monies.

Oral evidence at hearing
20. On 17 February 2025, the Tribunal conducted a hearing in the Brisbane Registry and each of the applicants provided oral evidence at hearing with the aid of an interpreter who translated in both Vietnamese and English. Where relevant, each of the applicant’s and the witness’ oral evidence is discussed in the Tribunal’s findings and reasons below.
21. The Tribunal also heard oral evidence from each of the following six listed witnesses by telephone from [Country] and Vietnam:
1)[Mr L], the first applicant’s younger brother.
2)[Ms M], the first applicant’s sister in law.
3)[Ms N], the first applicant’s sister.
4)[Mr O], the first applicant’s brother in law.
5)[Ms P], the first applicant’s friend and employee at the medical clinic she attended.
6)[Ms FF], the first applicant’s friend.

22. Two representatives also attended the hearing via MS Teams videoconference.
Post hearing submissions
23. Each of the applicants were not requested to and did not make any post hearing submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
24. 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.
25. 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

29. 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.
ANALYSIS, REASONS AND FINDINGS
ANALYSIS
Independent information
Family and gender based violence in Vietnam
30. The Tribunal notes that a 2019 government survey, quoted by DFAT in 2025, found that 63 per cent of women have experienced (physical, sexual, emotional, behavioural and/or economic) abuse from husbands or male partners in Vietnam.[2] Victims were often reluctant to seek help due to the inconsistent quality of responses and assistance offered.[3] These findings are consistent with the evidence provided by the first applicant in her experience of help seeking.
[2] DFAT Report 2025 at [3.131].
[3] DFAT Report 2025 at [3.135] and ‘Intersectoral coordination mechanism needed for gender-based violence response’, Vietnam Plus, 3 November 2023 available at Accessed 4 April 2025.
31. Country information sources suggest that gender based violence (GBV)is a pervasive problem still in Vietnam as is family violence. It is also widely acknowledged that women are significantly more likely than men to experience family violence.[4] The Tribunal finds that the nature of the harm that will be inflicted on the applicant and her children, the second and third applicants by [Mr A] in Vietnam falls within the definition of family violence and the harm to the first applicant is gender-based in the context of an intimate relationship.
[4] See 1931275 (Refugee) [2022] AATA 2662 (30 June 2022), where the Tribunal defined family violence by reference to the Australasian Institute of Judicial Administration’s National Domestic and Family Violence Bench Book, (updated for 2024).
Divorced and single women in Vietnam

Divorce is legal in Vietnam under the Law on Marriage and Family (2014) and can be declared fault based for reasons of adultery and abuse as is the case here. This law prohibits the obstruction of divorce.[5] The first applicant’s evidence and testimony regarding her difficulty with her divorce with three levels of officials and courts obstructing and delaying this process because of the power [Mr A] has in the area is regarded by the Tribunal. Even though his behaviour is illegal he has been able to persevere with it.
[5] DFAT Report 2025 at [3.123].
Although it is legal to divorce in Vietnam DFAT assesses the stigma related to divorce is strong for most Vietnamese women. DFAT notes, this stigma can result in family pressure and shame and can have economic consequences such as attempting to find suitable rental accommodation particularly in rural areas as there is a presumption that you are part of a couple and will live with parents and in-laws.[6]
[6] DFAT Report 2025 at [3.126].
The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating.’ This pressure is likely to be from families but may also be on a societal or community level. In-country sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors. Overall, DFAT assesses that ‘single women and divorcees do not face official discrimination but do face a moderate risk of societal discrimination’.[7] The Tribunal has considered this information along with the first applicant stating her fears about employment opportunities for a [Age] year old single, divorced woman and notes the Labour Code (ratified in 2019 and effective from 2021) prohibits discrimination in employment based on sex, age and marital status. Working age in Vietnam is considered from 15 to 64. The retirement age is 56 years and four months for women.[8] Poor and vulnerable groups such as the elderly are entitled to social assistance including cash allowances concessions and subsidies but these are modest and insufficient to live on according to DFAT.[9]The Law on Social Insurance (passed in 2014 and amended most recently in 2024) requires employees to contribute to a fund along with their employer to receive a retirement income but due to the high rate of informal work arrangements in 2022 38 percent of the workforce were covered mostly those in the formal work economy. [10]
[7] DFAT Report 2025 at [3.128].
[8] DFAT 2025 at [2.19].
[9] DFAT 2025 at [2.25].
[10] DFAT 2025 at [2.26].
DFAT in 2022 noted that welfare eligibility can be complex and access should not be assumed and this is impacted by informal employment arrangements and a solo reliance, that is a single person would generally find it insufficient to sustain a recipient given the difficulty in obtaining rental accommodation also.[11] As such the Tribunal has considered the difficulty the first applicant may face on return to Vietnam is substantial given her divorced status, gender, and age.
[11] DFAT 2022 at [2.30].
REASONS AND FINDINGS

36. The issue in this case is whether each of the applicants have a well-founded fear of harm in relations to their home country of Vietnam and whether they meet the refugee protection provisions in the Act and/or the complementary protection provisions of the Act and as such are owed complementary protection by Australia. For the following reasons, the Tribunal has concluded that the matter for each applicant should be set aside and remitted for reconsideration.
Nationality

Each of the applicants have consistently claimed to be Vietnamese citizens. Each of the applicants speaks Vietnamese. The Tribunal finds that the applicants’ are each citizens of Vietnam. There is no information before the Tribunal to suggest that the applicants are citizens of any another country. Vietnam is the receiving country for each of the applicants.
The applicants personal background

38. The first applicant was born in [Year] in [Town], Vietnam and had limited education. She married [Mr A] in 1982 and the couple had three children together. They divorced in 2017. The applicant came to Australia in 2019.
39. The second applicant was born in [Year] in Tay Ninh province and completed secondary school education and attended university and completed a degree in [Subject]. Th applicant came to Australia along with the first and third applicant in 2019.
40. The third applicant was born in [Year] in Tay Ninh province and completed secondary school education there.
41. The Tribunal accepts the above personal background information for each of the applicants to be true and has no evidence before it to the contrary.
New information

Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. In the first applicant’s protection visa application, she provided brief claims related to her fears from her ex-husband, [Mr A]. The first applicant was invited via a section 57 letter to provide further information about certain listed points to which she did. The applicants were not invited to an interview. The protection visa application was refused by the Department on 30 September 2020. The first applicant gave evidence that she was represented by another migration lawyer who assisted her to complete the application that contained very brief information and she did not know more information was required. The first applicant said she followed the advice of the lawyer/agent. Later the first applicant engaged her current legal representative who assisted her in preparing submissions for the Tribunal that more fully and accurately explained the details of the circumstances of all 3 applicants. The Tribunal accepts that the first applicant did raise her fears of her ex-husband in her protection visa application and there is a reasonable explanation as to why the further evidence and details of her claims were not raised before the primary decision was made. The Tribunal does not draw an inference unfavourable to the credibility of applicants.
Fears relating to family violence at the hands of [Mr A]

43. The accounts of violence suffered at the hands of [Mr A], provided in the statutory declarations of each of the 3 applicants and in each of their oral evidence at hearing, were consistent and compelling as were the accounts provided by their witnesses in their written statements and oral evidence. The first applicant in her statutory declaration has provided a list of names and contact details of authorities, police, and government officials she has been to seek help albeit to no avail. As such the Tribunal finds that the first applicant’s 35 year marriage to [Mr A] was marked by continuous abuse and violence from 1984 onwards and then escalating with the birth of her three children who were also subject to physical violence, harassment, and verbal abuse from their father up until the departure of the second and third applicants from Vietnam to Australia in 2018.
44. The Tribunal heard from the second and third applicant at hearing and they too provided consistent, compelling evidence of physical and mental abuse at the hands of their father, [Mr A]. The Tribunal accepts their oral evidence in its entirety.
45. The Tribunal finds that [Mr A] has in the past engaged in physical abuse of each applicant and obsessive monitoring and tracking of each of the 3 applicants in the past.
46. The Tribunal also finds that the extent and frequency of this abuse by [Mr A] to each of the 3 applicants along with the extent to which [Mr A] harassed the first applicant, her son [Mr B] and the second and third applicants, including bribing officials at all levels of government to locate the 3 applicants when they had fled their village on more than one occasion.
47. The Tribunal accepts the three applicants all suffered injuries requiring hospitalisation in the years preceding their departure from Vietnam. These are documented by hospital admissions on 21 August 2015 and 21 February 2018 for the third applicant. The document states treatment was for a beating with soft tissue injury, skin abrasions and bleeding. A translated hospital discharge document dated 21 May 2018 for the second applicant. The document states the admissions was for soft tissue injury caused by assault, superficial abrasions, and bleeding. Translated hospital discharge documents dated 3 May 2016 and 4 January 2018 for the first applicant. The document states the admission was for soft tissue injury caused by assault, superficial abrasions, and bleeding.
48. The Tribunal accepts the first applicant endured a lengthy and convoluted divorce process, marred by the interference of [Mr A] which meant she could not leave Vietnam until this was finally settled in 2017.
49. The Tribunal accepts she left Vietnam as soon as was practicable after these proceedings were finalised with her two young adult children, the second and third applicants leaving her older son in Vietnam as he had by this time married and had a child of his own.
50. In her evidence to the Department and in her Statutory Declarations provided prior to her hearing before the Tribunal, the first applicant claimed she remained fearful of her ex-husband as he has continued to want to know where the three applicants are living and if they were to return to Vietnam, he would ensure their lives were a living hell. The applicants’ all fear that [Mr A] would kill them if they were to return to Vietnam. These fears I accept as the first applicants ex-husband as is provided in her evidence has been obsessive in his control of her and his children, hiring thugs to stalk them, find where they moved to within Vietnam and bringing them back to him, bribing all levels of officials and legal practitioners to obtain information about them and hamper the divorce proceedings ending in a lengthy delay in its finalisation and her ability to leave Vietnam.
51. The Tribunal accepts each of the three applicants have suffered physical and psychological trauma at the hands of [Mr A]. Each of the witnesses provided consistent evidence in this regard along with evidence regarding his control of his wife and family through his financial dealings amounting to financial abuse. The first applicants siblings who gave evidence before the Tribunal spoke of lending the first applicant substantial sums of money to assist her in leaving [Mr A], filing for divorce, and finally leaving Vietnam. These witnesses also spoke of the concerning behaviour they noted in the second and third applicant and the oldest son, who still resides in Vietnam, that included fear of going out into the community, speaking with people including members of their own family and other behavioural and psychological symptoms they associated with the violence and control they were subjected to by [Mr A].
52. The Tribunal accepts that the first applicant and [Mr A] have divorced and she would be returning to Vietnam as a divorced woman and a single woman.
Do the applicants satisfy the refugee criterion for protection?

Having made the above findings relevant to each of the applicants claims related to [Mr A] it will now consider the risk of future harm to the applicants in Vietnam.
Sections 5J(1)(a) and (4)(a) of the Act require that the person claiming protection must fear being persecuted for the essential and significant reasons of their race, religion, nationality, political opinion, or membership of a particular social group. The applicant fear in relation to harm from [Mr A]. The Tribunal is satisfied that the essential and significant reason for the harm each of the applicants claim they will suffer is for the reason of membership of a particular social group namely ‘survivors of family violence and gender based violence in Vietnam’ per section 5J(1) of the Act.
The Tribunal finds, based on the evidence, that each of the applicants have a ‘well-founded fear of persecution’ from [Mr A] and face a real chance of harm if they were returned to their home area of their receiving country, Vietnam in the reasonably foreseeable future.
This harm is constituted as serious harm as set out in s 5J(5) of the Act. This harm is for one of the reasons as set out in s 5J(1)(a). This is an essential and significant reason for the persecution, as is required by s 5J(4)(a), which each of the applicants fear.
The harm to each applicant is considered systemic and discriminatory as required by s 5J(4)(c). This is deliberate and intentional consequently and at the hands of [Mr A] and his ‘thugs’ and his ability to bribe government authorities and police for information to further harass and control the applicants.
Having made the above findings relevant to each of the applicants’ claim relating to harm at the hands of [Mr A] the Tribunal must now consider the risk of future harm to each of the applicants in Vietnam.
Having accepted each of the applicants extensive history of physical and psychological abuse at the hands of [Mr A] and the lengths to which he has gone to locate, harass and control each the applicants and the threats [Mr A] has made to continue to do so if he finds them again in Vietnam, at the word of the applicant’s oldest son, the Tribunal accepts each of the applicants may be at risk of serious harm if they were to return to Vietnam in the foreseeable future.
The Tribunal must also consider if the harm is determined to relate to all areas of the receiving country as required by s 5J(1)(c).
The Tribunal has considered whether the family and gender based violence each of the applicants have suffered could be ameliorated by their relocation to another area of Vietnam. However, the Tribunal is satisfied that the previous attempts each of the applicants have made to move away from [Mr A] have resulted in him and his ‘thugs’ finding them and forcing their return to their home village. The Tribunal has considered the time since their departure from Vietnam in 2018 and if, now after 7 years, this would still be the case. The Tribunal is of the view that again based on this history of [Mr A]’s behaviour, it is more than a possibility he may seek reprisal or retribution on each or all the applicants if they were to return and such a possibility is too great. Therefore, the Tribunal finds the harm relates to all areas of the receiving country, Vietnam as required by s 5J(1)(c).
Effective protection measures
The Tribunal must consider if there are effective protection measures available to each of the applicants in Vietnam per ss5J(2) and 5LA. The first applicant has provided documentation of the names, contact details and positions held by relevant state authorities including police, government officials and judiciary she has made complaint of family violence, harassment, and abuse to no avail. She has said her ex-husband, [Mr A] is a powerful, connected, wealthy man and has bribed people at all levels of authority to obtain information about each of the applicants whereabouts, interfere with their divorce proceedings and monitor their movements and financial independence to control their ability to subsist. The first applicant’s oral evidence at hearing, her statutory declaration prior to hearing and the evidence of the second and third applicants and the 6 other witnesses is the basis for the Tribunal finding that each of the applicants are unable to avail themselves of effective protection measures in their receiving country of Vietnam. As such the Tribunal finds there are no effective protection measures available to each of the applicants in the receiving country as per ss5J(2) and 5LA.
Each of the applicants meet s5H(1)(a) as they are outside their country of nationality, Vietnam and owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of their country, Vietnam.
The implementation of laws against domestic violence and protection of those at risk in Vietnam appears mixed at best. The Tribunal has considered the country information discussed above and has placed weight on DFAT’s information that women who are ‘brave enough’ to contact authorities might be ignored or receive cursory and ineffective help. A common theme mentioned by in-country sources was that police responses are mixed – sometimes they will attend and arrest perpetrators, other times they will be dismissive.
The Tribunal is satisfied that there are not effective protection measures available to the applicants in Vietnam.
Behaviour modification
When considering if each of the applicants could take reasonable steps to modify their behaviour to avoid a real chance of persecution, other than a modification that would conflict with a characteristic that is fundamental to the applicants’ identity or conscience; conceal an innate or immutable characteristic; or require the applicant to do any of the specified things in s 5J(3)(c) the Tribunal has considered this and accepts each of the applicants cannot conceal their identities and be expected to live in this manner to possibly avoid harm by (Mr A].
The Tribunal has found that the first, second and third applicants each have a well-founded fear of persecution and there is a real chance per s5J(1)(b) of persecution if each of them together or separately were to return to Vietnam.
As such and after considering each of the criterion, the Tribunal is satisfied each of the applicants’ satisfy requirements to meet the refugee criterion in s 36(2)(a) of the Act.
The Tribunal has therefore not considered whether each of the applicants’ satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Protection Obligations
As each of the applicants have been found to meet the refugee criterion in s 36(2)(a) of the Act. The Tribunal is satisfied that the applicant each have a real risk of suffering significant harm for the reasons outlined in paragraphs 58 to 61 above. The Tribunal has set out above why each applicant cannot relocate and why there is not protection available from an authority that reduces the risk of significant harm to less than a real risk of significant harm.
The Tribunal is satisfied each of the applicants’ have no presently existing right, however expressed, to enter and reside in any other country and section 36(3) does not apply.
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, each of the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that each of the applicants meet the following criteria:
·s 36(2)(a) of the Migration Act (1958)(cth).
Date of hearing: 17 February 2025
Representatives for the applicants: Dr Nathan (Nam) Le
Ms Paris Nguyen
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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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