2111771 (Refugee) - [2025] ARTA 1766

2111771 (REFUGEE) [2025] ARTA 1766 (10 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Mr Stafford Ernest Fallen (MARN: 0209594)
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2111771

Tribunal:General Member S Waring
Date:10 July 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 10 July 2025 at 9:10am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Christian – race – ethnic Chinese – victim of family violence – fear of money lenders – fear of killing – detention – state protection – complementary protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2021 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 8 October 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 3 September 2021 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the 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.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The applicant was represented in relation to the review. The representative Mr Fallen attended the first scheduled hearing (on 28 March 2025) advising the Tribunal that he had been unable to take instructions from the applicant prior to the arrival of documents received under Freedom of Information (FOI) on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2111771 (Refugee)

Details

AGLC: 2111771 (Refugee) [2025] ARTA 1766
Case: [2025] ARTA 1766
Decision Date: 10 July 2025

CaseChat Overview and Summary

The case involved a Vietnamese national who applied for a protection visa in Australia, claiming persecution due to her Christian faith and ethnic Chinese background, compounded by family violence and threats from money lenders. The application was reviewed by the Department of Home Affairs, which did not conduct an interview but took into account the application and supporting documents. The matter was subsequently referred to the Migration Review Tribunal for a hearing, where additional oral evidence was provided by the applicant and a witness. The Tribunal was tasked with determining whether the applicant qualified for a protection visa under the refugee criterion or complementary protection criterion of the Act.

The central legal issues for the Tribunal to decide were whether the applicant was a refugee under the Act and, if not, whether she qualified for complementary protection. The Tribunal had to assess the applicant’s claims of persecution based on her Christian faith, ethnic identity, family violence, and threats from money lenders, and determine if these claims met the threshold for a well-founded fear of persecution. Additionally, the Tribunal had to consider if the applicant's circumstances warranted complementary protection, despite not meeting the refugee definition.

In its decision, the Tribunal found that the applicant’s claims, while concerning, did not conclusively establish a well-founded fear of persecution for the purposes of the refugee criterion. However, the Tribunal determined that the applicant's fear of money lenders and family violence, coupled with the absence of state protection, warranted consideration under complementary protection. The Tribunal concluded that the applicant's case should be remitted to the Department for further consideration under the complementary protection criterion.

The Tribunal remitted the decision to the Department for reconsideration under the complementary protection criterion, directing that appropriate weight be given to the applicant's claims of family violence and threats from money lenders, and the lack of state protection. The Tribunal also noted the importance of ensuring that the applicant's claims were thoroughly assessed to determine her eligibility for complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.BACKGROUND [The applicant] is now [age] years old. She was born in [Country 1] before relocating to [Province 1], Vietnam with her family (to escape [violence]) when she was [age] years of age. [The applicant] married in 1972 and moved to An Giang, Vietnam to live with her husband’s family. Following years of family abuse, [the applicant] moved to Ho Chi Minh City, Vietnam leaving her [children] (then aged [specified ages]) in the care of her husband and his family. The (now adult) children live in Ho Chi Minh City. Her parents and former husband are now deceased. [The applicant] lived in Ho Chi Minh City between 2000 and 2016. She was granted a visitor visa on 27 September 2016 and arrived in Australia [in] October 2016. She applied for protection on 8 October 2020.Evidence before the Department and the Tribunal No interview was undertaken by the Department. When the protection visa application was lodged online, the Department wrote to the applicant acknowledging the application and advising that she could present further information for consideration - including via her online account. No further materials were provided by the applicant and the evidence taken into account by the Department included:·the applicant’s protection visa application·supporting documents including personal identifiers sighted by the Department as part of an identification test On 8 May 2025 a submission was provided to the Tribunal by the applicant’s representative (the pre-hearing submission) accompanied by a statement signed by [Friend A] on 7 May 2025. In addition to the above documents, the applicant and a witness ([Pastor A]) provided oral evidence to the Tribunal at hearing. Following the hearing a submission dated 25 May 2025 (the post-hearing submission) was provided to the Tribunal by the applicant’s representative. A movement record showing the applicant’s only arrival into Australia is also before the Tribunal. The totality of evidence before the Tribunal is discussed and examined below.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.

Evidence

Evidence Before The Court

[The applicant] lived in Ho Chi Minh City between 2000 and 2016. She was granted a visitor visa on 27 September 2016 and arrived in Australia [in] October 2016. She applied for protection on 8 October 2020.Evidence before the Department and the Tribunal No interview was undertaken by the Department. When the protection visa application was lodged online, the Department wrote to the applicant acknowledging the application and advising that she could present further information for consideration - including via her online account. No further materials were provided by the applicant and the evidence taken into account by the Department included:·the applicant’s protection visa application·supporting documents including personal identifiers sighted by the Department as part of an identification test On 8 May 2025 a submission was provided to the Tribunal by the applicant’s representative (the pre-hearing submission) accompanied by a statement signed by [Friend A] on 7 May 2025. In addition to the above documents, the applicant and a witness ([Pastor A]) provided oral evidence to the Tribunal at hearing. Following the hearing a submission dated 25 May 2025 (the post-hearing submission) was provided to the Tribunal by the applicant’s representative. A movement record showing the applicant’s only arrival into Australia is also before the Tribunal. The totality of evidence before the Tribunal is discussed and examined below.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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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