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 26 March 2025. The applicant had retained no documentation of her protection visa application (or the department’s decision) and was said to have no recollection of either. The FOI request had been submitted on 12 December 2024. An adjournment of the hearing was directed by the Tribunal to enable the applicant to examine the documents, instruct her representative and submit any further material she wished the Tribunal to consider.
The applicant then appeared before the Tribunal on 12 May 2025 to give evidence and present arguments. Mr Fallen attended again. The Tribunal also received oral evidence from [Pastor A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims considered by the Department
The protection visa application submitted by [the applicant] discloses claims focussing on her alleged pro-democratic, anti-government political opinions and advocacy both in Vietnam and Australia. The protection visa application also claims that the applicant is Catholic and would be controlled indirectly by authorities in Vietnam if she returns, because there is no freedom of religion in her home country.
At hearing, the applicant withdrew claims put to the delegate regarding her political opinion and amended her claim regarding religious freedom as she has never followed the Catholic religion. Instead, she now follows the Baptist faith.
Following the hearing, the applicant provided a post-hearing submission confirming that, as she had no knowledge of the protection visa application’s content she wishes to formally remove the above cited information from her ART application.
Claims at hearing
At hearing [the applicant] asserted that she has been discriminated against in Vietnam because of her Chinese heritage. She wishes to maintain the claim that she will suffer harm in Vietnam due to her ethnicity because people of Chinese descent do not get proper or fair protection from Vietnamese authorities.
At hearing [the applicant] told the Tribunal that she wishes to maintain the claim that she will suffer harm in Vietnam because the Vietnamese government does not trust people returning from abroad.
In submissions provided to the Tribunal (both before and after the hearing) the applicant made assertions summarised as follows:
·she suffered many years of mental and physical abuse at the hands of her (now deceased) husband in Vietnam and fears further abuse, from members of his family, should she return to her home country
·she fears retribution at the hands of loan sharks in Vietnam who provided her with funds some of which she was unable to repay due to a failed business venture
·as a born-again Christian she would face significant restrictions on the practice of her religion if she returned to Vietnam as Christianity is still not freely practiced there
·due to her Christian religion, she would face:
- isolation and a lack of understanding from her loved ones if she returns to Vietnam because her family follows Buddhist and ancestral worship traditions and many not accept her conversion to another faith. As a result, she faces not only isolation from her loved ones but also a lack of understanding and personal protection
- a lack of understanding and protection from her community which follows Buddhism and ancestral worship traditions. As the community often does not accept conversions to other faiths, the applicant fears she would not receive any sympathy or assistance from authorities in Vietnam.
Evidence at hearing
[Pastor A]
The Tribunal heard that [Pastor A] first met the applicant at Christmas 2023 when the applicant joined in a 2-week bridging session for the Vietnamese community at her Baptist church in [Town 1].
[Pastor A] described the applicant as a loyal and devout believer in God. The applicant, who is liked by everyone (because of her honesty, hard work and diligence) is a loyal participant in bible-study sessions each Thursday. She participates in religious activities and lends a helping hand in the kitchen. According to [Pastor A], the applicant is active in development and promotion sessions and (on Sundays) she attends church for prayer, Sunday school and the service at 10 am.
The applicant attended a religious education course (14 lessons over 6 months) she was tested on her religious understanding and was baptised in October or November 2024. [Pastor A] accepts the applicant as having converted from Buddhism to become a ‘God believer’. When she first met (and interviewed) the applicant, she gained the understanding that the applicant had spent time studying different religions but had not previously held a committed belief in a single religion.
The Applicant
Following the testimony of [Pastor A], the applicant gave evidence to the Tribunal.
The Tribunal enquired about the 4 year delay between the applicant’s arrival in Australia ([in] October 2016) and her application for protection on 8 October 2020. [The applicant] explained that she decided to stay in Australia because she faced repayment of debts if she returned to Vietnam. The onset of the COVID pandemic brought her the opportunity to apply for protection and her friend [Friend A] paid for a ‘service provider’ to prepare the paperwork.
The applicant stated that she had no knowledge of the content of the application. The Tribunal informed the applicant that key issues in the application related to her political opinion and Facebook post she is alleged to have made containing anti-government sentiments.
In relation to these claims the applicant stated:
·that she did not have political opinions that she expressed publicly in Vietnam
·she has not strongly supported the opposition Vietnamese party
·she has not been active on Facebook regarding political Maters
·she has not expressed any anti-government opinions while she has lived in Australia.
Later in the hearing the applicant withdrew claims relating to ‘political opinion’ however she maintained the claim that people in Vietnam do not have adequate protection of their human rights because “people who had left Vietnam, once they return, the government would no longer trust them and therefore they no longer enjoy the government protection.”
Religion
The applicant stated that she followed no religion during her childhood. About one year after she came to Australia she started researching different religions because she was looking for somewhere to give her mental support due to the family abuse she had suffered in Vietnam.
The applicant had settled in [Town 2] (in 2016) and, for seven years, she attended the [Buddhist] Bagoda temple there. The applicant stated that she then moved to [Pastor A’s] Protestant church and received ‘grace’ there at the end of 2024.
The applicant stated that she now wishes to devote the rest of her life to the church.
Family and history in Vietnam
The applicant explained that (after escaping the [communal violence] in [Country 1] when she was [age] years old) she was [age] years old when she married a Vietnamese man and moved to live with her husband’s family in An Giang, Vietnam. The applicant later corrected this information stating that she had been [age] years old when she married (in [year]).
The applicant stated that she had lived with her husband for a while before the domestic abuse started but “Subsequently…my husband have the extramarital relationship. He had a concubine, he beat me, there was family violence, and I had to escape to Ho Chi Minh City.”
[The applicant’s] children were born in [respective years]. Around the time her children were aged 17, 20 and 22, she left the family home and moved to Ho Chi Minh City on her own. The children continued to live with her husband’s parents until they started studying in Ho Chi Minh City. There was a long period during which her distance from the children (who visited her infrequently) caused the applicant to become somewhat alienated from them.
The applicant is seldom in contact with her children (now aged [ages]) who live in Ho Chi Minh city. She explained that she does not maintain contact with her children who say they cannot look after her if she returns to Vietnam.
The applicant has learned that her former husband passed away approximately one year ago. Both her parents are now deceased.
Loan sharks
The applicant stated that between 2000 and 2016, she was living in Ho Chi Minh City where she performed domestic work and was (sometimes) a salesperson. The applicant was finding it difficult to support herself financially and in 2015, she was approached by lenders offering her funds to set up a [business 1].
The applicant borrowed a total of VND [amount] (over 2 instalments) at an interest rate of 30%. There was no documentation or paperwork in relation to the loans.
The applicant stated that 2 persons had loaned her the funds. She recalled one of the lenders was named [name]. She could not recall the name of the other lender.
The applicant explained that she used the VND [amount] loaned to her in 2015 to provide capital to set up a [business 1]. When the business was unsuccessful and the loan remained unpaid, the lenders seized the [business 1] in 2016. The 2015 loan fell due for payment in September 2016 and the assets she forfeited to the lenders were worth about VND [amount].
The applicant had borrowed a further VND [amount] in 2016 which she used to “pay back some of the debt and the interest and the remainder [was used] to pay for an air ticket to Australia.”
The Tribunal enquired what amount of debt remained unpaid when the applicant left Vietnam. The applicant stated that the value of the [business 1] did not cover the outstanding debt and that VND [amount] remained outstanding.
When asked whether any paperwork was created when the [business 1] was ceded to the lenders the applicant stated “in Vietnam private business in black market or money lending or borrowing goes without paperwork or documents So seizing a business or taking over the ownership produces no paper document.”
The applicant stated that she had told her friend [Friend A] about the loans but had not shown her any documentation. [Friend A] had visited the house in Ho Chi Minh City (where the applicant was providing domestic services) several times in 2015 and 2016. [Friend A] became (or had already been) friends with the applicant and invited her to Australia.
In 2016 another of the applicant’s friends told her that the lenders had threatened to kill her if they could not get their money back. The applicant told the Tribunal “that’s why I decided to escape.”
The applicant stated that the lenders had also made threats by contacting her personally ‘They said that [by the due date] if I didn’t pay back they would kill me – but before the due date I [had] already run away.”
Since arriving in Australia (in October 2016) the applicant has had a new mobile phone and the lenders have not made direct contact with her or her children.
The Tribunal asked the applicant about her fear of returning to Vietnam when the lenders have not been in contact with her for 9½ years. The applicant responded that ”if I return [they will] kill me if I am unable to repay.” She stated that the lenders live locally in Ho Chi Minh City so she would ’run into them’.
The Tribunal enquired whether the applicant would be safe if she returned to live away from Ho Chi Minh City. The applicant stated that she only ‘knows’ the neighbourhood where she used to live in Vietnam and that the lenders have a big network so they would be able to find her. She stated that the lenders do not know about her children.

The applicant confirmed that she has not expressed any opinion against the Vietnamese government (either in Australia or Vietnam) and does not believe she would be of any interest to authorities in Vietnam. Even so, the applicant observed that the Vietnamese government does not trust people who go abroad and that people who have left Vietnam would not be protected if they returned.
The applicant explained that having been born in [Country 1] (with Chinese heritage), she was considered to be an alien (a foreigner) in Vietnam even though she later became a Vietnamese citizen. The applicant’s grandparents were from China and, despite her mother being Vietnamese, she has been considered as a person of Chinese descent - not trusted by the Vietnamese government.
Her father was also of Chinese ethnicity and in 1979, he was dismissed from his job and placed under house arrest for one year. The applicant believes that her father was not allowed to work for the government because of his ethnicity. The applicant stated that she has herself never been detained or placed under house arrest.
The applicant told the Tribunal that she wishes to maintain the claim that she will suffer harm in Vietnam due to her ethnicity because (she said) people of Chinese descent do not get proper or fair protection from Vietnamese authorities.
The applicant also advised that she wishes to maintain the claim that she will suffer harm in Vietnam because (she said) the Vietnamese government does not trust people returning from abroad.
The applicant told the Tribunal that she no longer maintains any claim that she was warned and detained for expressing political opinion.
The applicant told the Tribunal that she no longer maintains any claim that she followed the Catholic religion in Vietnam. The applicant stated that she wishes to stay in Australia because now she follows Christianity as part of the Baptist church. She has found the new faith and wants to devote the rest of her life to the church.
The applicant stated that the main reason she is scared to return to Vietnam is because she still owes money to loan sharks.
Reasons for producing new evidence
At hearing the applicant told the Tribunal that a service provider promised that they would prepare her visa application. She was assisted by her friend [Friend A] in locating the service provider but ultimately, she did not know the contents of the application.
COUNTRY INFORMATION
Country information about illegal money lenders in Vietnam provides essential context for understanding and assessing the applicant’s primary claim.
In 2025, the Australian Department of Foreign Affairs and Trade (DFAT) reported[1] that loan sharks (moneylenders who charge extremely high rates of interest, typically under illegal conditions) are a countrywide problem in Vietnam and are most prevalent in the applicant’s adopted home in Ho Chi Minh City. The DFAT report states:
3.176 According to in-country sources, as of October 2023…organised criminal syndicates provided loan services to anybody who needed them (with loans reportedly provided up to 30 times the official cash rate). According to the United Kingdom’s Home Office, unofficial moneylending services may also be provided by neighbourhood money lenders, which were less likely than criminal syndicates to charge high interest and employ harassment to recoup debts. DFAT cannot attest to how widespread illegal moneylending in Vietnam is but notes that informal moneylending services are widely available, including online, and sometimes advertised openly (e.g. fliers on utility poles or through social networking platforms like Facebook, TikTok and Zalo). According to local and international reporting, people can borrow money from illegal moneylenders in Vietnam with minimal to no collateral.
3.177 There is a potential for reprisals for unpaid debts, particularly where the creditor is an organised criminal syndicate. According to in-country sources, speaking in October 2023, reprisals might be carried out by individuals hired by creditors to exert pressure on debtors, rather than by the creditors’ themselves (some loan sharks had established legitimate debt collection companies to pursue unpaid debts). Reprisals can take various forms, ranging from psychological pressure and public embarrassment to intimidation and violence, although in-country sources said violence was not typically used. Specific reprisals may include property damage, asset seizures, playing of loud music outside debtors’ homes, and sending funeral wreaths to their homes or workplaces. While the use of violence was not common, the disruption to a debtor’s life – and associated psychological pressures – was sometime acute. In-country sources reported instances of creditors or their contractors moving into a debtor’s home, including eating their food, until the debt was repaid in part
or in full. Debtors’ family members may also face verbal and physical harassment and threats.
3.179    While limited information is available about loan shark victims, in-country sources said criminal syndicates had national and international reach. Where criminal syndicates of such a profile (as opposed to smaller, neighbourhood lenders not affiliated with criminal syndicates) were involved, the threat of reprisal, including violence, could exist in different parts of the country. According to in-country sources, speaking in October 2023, a debtor who escaped without repaying their debt could expose remaining family members to reprisal. In-country sources were aware of instances of debtors who could not repay their loans committing suicide, though could not speak to its prevalence.
3.181    State protection from loan sharks is available, and there are examples of loan sharks being arrested, prosecuted and given long prison sentences. According to local media reporting, police in Ho Chi Minh City detected and punished 404 individuals across 263 suspected cases of loan sharking in 2023, and a further 115 individuals across 63 cases in the first quarter of 2024. According to the same reporting, police detected and eliminated 27 mobile applications offering loans at exorbitant rates of interest (up to 900 per cent annually)…
3.182   In practice, debtors may be reluctant to report to the police, including due to feelings of shame and, where the creditor is a criminal syndicate, fears of reprisal; in-country sources reported in October 2023 that, unless physical violence was involved, most debtors did not report to the police. Irrespective, the police may be unable to investigate and prosecute a loan shark because there is typically no written evidence of a loan. This is particularly true in recent years: much loan sharking activity moved online during the COVID-19 pandemic and the debtor may not know the identity of the creditor.
3.183    DFAT assesses people who owe money to loan sharks do not face official or societal discrimination, with harassment from money lenders mitigated through relocation. When money is borrowed from criminal syndicates, particularly large, organised syndicates, the risk of harassment even after relocation may remain high. When money is borrowed from smaller, community-based lenders, the risk of harassment following relocation is lower. While it cannot be discounted entirely, DFAT assesses the risk of violence for the purpose of recovering unpaid debt to be low overall. The risk of violence may increase where the debtor seeks to consistently evade the creditor, or larger scale criminal syndicates are involved.
[1]     DFAT Country Information Report Vietnam (19 February 2025) paras 3.175 to 3.183
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of her Vietnamese passport to the Department as part of her protection visa application. The delegate accepted that the applicant is a citizen of Vietnam and there is no information before the Tribunal to the contrary. I find that the applicant is a citizen of Vietnam, and that Vietnam is her receiving country for the purposes of assessing her claims for protection.
History of past harm
The protection visa application discloses that [the applicant] was born in [Country 1]. At hearing, she gave evidence that she had to run away from [Country 1] with her family when she was about [age] years-of-age because of the [communal violence at the time]. She settled with her family in [Province 1], Vietnam until she married and moved away.
At hearing, the applicant gave evidence in relation to her history of family abuse when she was living in An Giang with her husband’s family. The applicant explained that the violent abuse (including being beaten) was compounded by her husband having a concubine. She felt she had to escape so she moved to Ho Chi Minh City leaving her children behind. Despite the applicant being initially uncertain of her age when she married, the Tribunal found the applicant to be consistent in her evidence regarding her early life, family abuse and ‘escape’ to Ho Chi Minh City and accepts her evidence in this regard to be reliable.
In the witness statement of [Friend A], the issue of the applicant’s suffering in Vietnam is addressed as follows:
[The applicant] was involved in a deeply distressing and abusive will domestic relationship with her husband. The nature of this relationship was not only emotionally damaging but also posed a serious threat to her personal safety. As a result, she was ultimately forced to flee her home and relocated in Ho Chi Minh City in search of safety and a fresh start.
The Tribunal apportions less weight to [Friend A’s] statement regarding historical abuse suffered by the applicant as the materials before the Tribunals indicate that she has no direct knowledge of instances of the abuse.
At hearing, the applicant stated that her former husband has passed away however, it is claimed in the post-hearing submission that:
…while acknowledging that [her deceased husband] is no longer a threat to her safety, his immediate family including his mistress who took an active part in the ill-treatment and humiliation she suffered are still living and pose a continued threat to her which does not diminish her fear of returnir1g to Vietnam and harm that may come to her should she do so.
[this situation leaves] [the applicant] with a profound sense of fear that should she return to Vietnam her wellbeing and possibly her life are in danger and she is aware that from earlier experience she will not receive any sympathy or assistance from authorities there.
The Tribunal attributes less weight to these post-hearing statements because the applicant did not give evidence at the hearing that family members of her (now deceased) husband pose a threat to her safety should she return to Vietnam.
Loan sharks
At hearing, the applicant stated that her primary fear of returning to Vietnam relates to the unpaid debt she owes to illegal lenders in Vietnam as they have threatened to kill her if it remains outstanding when she returns.
Section 367A of the Act provides for circumstances in which the Tribunal is required to draw an inference unfavourable to the credibility of claims or evidence that were not first raised or presented before the primary decision was made if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence was not presented, before the primary decision was made.
In her statement, [Friend A] stated that she assisted the applicant with the protection visa process and placed her trust in an agency ([named]) manage the process on the applicant’s behalf. There was subsequently no transparency regarding the status of the application. They did not know what type of visa was being applied for or the documents submitted on [the applicant’s] behalf.
The applicant’s evidence at hearing was consistent with that of [Friend A]. She further stated that ultimately, she did not know the contents of the application.
Based on the evidence of [the applicant] and [Friend A], the Tribunal accepts that, while the outstanding debt was not raised in the protection visa application, [the applicant] had no knowledge of the content of her application until 26 March 2025 when she received a copy of it (and the delegate’s decision) in response to a FOI request. The Tribunal notes that the applicant was not offered an interview with the Department to discuss her claims. Had she been given this opportunity she may well have raised her fear of loan sharks and provided evidence regarding the debt at an earlier stage.
The Tribunal accepts that the applicant has provided a reasonable explanation why the claim regarding loan sharks was not made, or evidence was not presented, to the Department before the primary decision was made. As such, the Tribunal does not draw an inference unfavourable to the credibility of the applicant’s claim regarding loan sharks pursuant to s 367A.
In the witness statement of [Friend A], the issue of the applicant’s borrowings and interaction with loan sharks is addressed as follows:
I have known [the applicant] for many years, during which time I have become deeply familiar with her personal circumstances, including the many hardships she has endured…Unfortunately, relocating to the city introduced new challenges. The high cost of living in Ho Chi Minh City led [the applicant] into debt. In a desperate attempt to survive, she borrowed money from informal lenders (commonly referred to as loan sharks), who subsequently began harassing and threatening her with violence due to unpaid interest.
The Tribunal apportions less weight to [Friend A’s] statement regarding the applicant’s loan sharks claim as it accepts evidence that she did not sight any loan documentation. The materials before the Tribunals indicate that [Friend A] has no direct knowledge of the loans or behaviour of the loan sharks.
A submission provided by the applicant post-hearing expands on claims regarding unpaid debts as follows:
Her additional fear, should she return to Vietnam is that of retribution that she will likely suffer at the hands of loan sharks who provided her with funds some of which she was unable to repay due to a failed business venture.
[this situation leaves] [the applicant] with a profound sense of fear that should she return to Vietnam her wellbeing and possibly her life are in danger and she is aware that from earlier experience she will not receive any sympathy or assistance from authorities there.
The Tribunal found the applicant’s evidence at hearing to be frank and natural, with no indication of having been rehearsed or coached. The applicant was forthright when disclosing to the Tribunal that her (abusive) former husband had died.
The applicant quickly corrected herself when she misstated her age upon marrying. Thereafter at the hearing [the applicant] appeared to be a reliable historian when recounting details of her life and experiences – including her successive actions to escape harm by relocating to Vietnam (in 1969), Ho Chi Minh City (in 2000) and Australia (in 2016). The Tribunal found the applicant to have been an honest witness who provided consistent evidence throughout the hearing as to her borrowings, the seizure of her assets, her reasons for coming to Australia when she did and her search for community within the Church since arriving in this country.
The Tribunal found the oral evidence of the applicant to be internally consistent in most respects regarding the timing of the loans she received, the manner in which she used the borrowed funds and the amount of debt remaining after the business assets were seized by the lenders. The applicant’s account of escaping Vietnam because the first loan was due to be repaid in September 2016 is consistent with Department records that she was granted a visitor visa on 27 September 2016 and departed Vietnam as soon as possible thereafter ([in] October 2016).
The Tribunal finds that the evidence of [Friend A] (that she invited the applicant to visit Australia on 30 September 2016 out of deep concern for her wellbeing) is consistent with the applicant’s evidence and the Department records. The Tribunal accepts that [Friend A] had first-hand knowledge of the applicant’s psychological state in September 2016 and was deeply concerned about it.
The Tribunal notes that the applicant’s evidence regarding the identity of the lenders was lacking in detail and there was no documentation provided regarding terms of the loans, repayments made or the lenders’ seizure of assets. Based on the country information cited above, the Tribunal accepts however that illegal lenders in Vietnam often do not document their transactions.
The applicant’s evidence regarding threats or harassment directed at her by the lenders was lacking in detail and she did not identify the ‘friend’ who told her that the lenders had threatened to kill her if they could not get their money back. Even so, the Tribunal assessed the applicant as forthright when stating that she has not received threats from the lenders since she came to Australia in September 2016. The Tribunal accepts the applicant’s evidence that she avoided further contact with the lenders by not using her Vietnamese phone after coming to Australia.
In assessing the credibility of the applicant’s claim regarding unpaid loans, the Tribunal is mindful of the difficulties that asylum seekers often face, and that the benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of their claims.[2] Moreover, this case has had a long history, with the claims arising from events that occurred almost a decade ago.
[2] SZLVZ v MIAC [2008] FCA 1816 at [25].
The Tribunal accepts the applicant’s evidence that her children were not involved with the loans and have not been threatened or harassed by the lenders because they live independently of their mother and (as the applicant stated) they “don’t know what I do.”
ACCEPTED FACTS
As observed above, the Tribunal accepts the applicant as being a witness of truth. The Tribunal also gives weight to the evidence provided by [Friend A] on issues (such as the applicant’s state of mind in September 2016) she personally observed during the course of her friendship with [the applicant].
In relation to the past harm the applicant has suffered the Tribunal accepts that:
·at times between [birth] and 1969 she was exposed to childhood trauma growing up in (and escaping) [Country 1] while the violent [named] regime was in power
·at times between 1975 and 2000 family violence was inflicted upon her during her marriage resulting in her actions to escape the family home and move to Ho Chi Minh City to survive independently
·the applicant has experienced a long period of alienation from her children.
In relation to the applicant’s borrowings and the loan-related harm she suffered in Vietnam the Tribunal accepts:
·the applicant borrowed funds (either from an organised criminal syndicate or neighbourhood lenders) at an annual interest rate of 30% as follows:
- in 2015 to set up a business
- in 2016 to fund her escape when a repayment on the 2015 loan (VND [amount]) fell due in September 2016 which she was unable to pay.
·that money lenders seized the applicant’s business assets in 2016 when she did not make the repayment due in September 2016
·that the applicant has consistently evaded the lenders since coming to Australia in October 2016 having disposed of her Vietnamese phone and not visiting her home country
·that, with interest accruing at 30% for 9½ years, the current amount outstanding on the applicant’s loan would be a large sum
·that the applicant is now [age] years-of-age and has been educated only to secondary level (in [year])
·the applicant’s response to living [among communal violence] in [Country 1] was to ‘escape’ to Vietnam in 1969
·the applicant’s response to living with ongoing family abuse in An Giang was to ‘escape’ to Ho Chi Minh City in 2000
·in what constitute threats and harassment, the lenders informed the applicant there would be ‘consequences’ if she failed to repay the loan in September 2016
·the applicant was granted a visitor visa to Australia on 27 September 2016
·the applicant’s response to the threats and harassment by the lenders was to ‘escape’ to Australia [in] October 2016
·fearing retaliation by the lenders (if she did not make the repayment due in September 2016) the applicant suffered psychological harm at their hands in the context of:
-her being [age] years-of-age at the time without her children, parents or former husband to rely upon to help repay the debt or to protect her from the lenders
-her experiences of childhood trauma and sustained family violence
-her belief, based on previous inaction (in relation to her past domestic abuse) that the authorities would not protect her because of her Chinese heritage and because she had no documentation of the loans.
·due to her fear of reprisals by the lenders, the applicant departed Vietnam (and came to Australia in September 2016 where she could be supported by her friend [Friend A]) as soon as she could after being granted a visitor visa
·the applicant has actively addressed her fears and past psychological harm by seeking support and ‘community’ in [Pastor A’s] church since 2023.

100. In relation to the applicant’s circumstances if she returned to Vietnam, she would live in her old neighbourhood (with which she is familiar and) where she would be in proximity to her [children].
REASONS AND FINDINGS
101. 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. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
Findings on loan sharks claim – refugee criterion
102. To meet the refugee criterion, a person must have a well-founded fear of persecution for one
or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality,
membership of a particular social group or political opinion.
103. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
104. Having found that the applicant has an unpaid loan to lenders in Vietnam (and having regard to the country information cited above) the Tribunal accepts that there is the potential of reprisals against her (whether the money lenders are neighbourhood operatives or part of an organised criminal syndicate) if she returns to Vietnam because she left the country without paying back the loan and has consistently evaded the lenders since then.
105. In terms of the s 5J(1)(a) ‘subjective requirement’ cited above, the Tribunal finds that the applicant does in fact hold a fear of being persecuted by the money lenders if she returns to Vietnam. The Tribunal accepts that the applicant fears psychological (and physical) harm due to her personal vulnerabilities including:
·her advanced age (she is currently [age] years-of-age)
·her exposure to childhood trauma and sustained domestic abuse
·her limited ability to seek support and protection from children (with whom she is somewhat estranged) or the Christian community in [Pastor A’s] church, if she returns to Vietnam.

106. In terms of the ‘objective requirement’ in s 5J(1)(b) the Tribunal finds, based on the country information cited above, that lenders such as organised criminal syndicates (as well as neighbourhood money lenders) carry out reprisals against defaulting debtors which would cause serious harm to the applicant. In particular, the Tribunal notes the above cited DFAT report assessment that “the risk of violence for the purpose of recovering unpaid debt …may increase where (as in this case) the debtor seeks to consistently evade the creditor…”.[3]
[3] DFAT Country Information Report Vietnam (19 February 2025) para 3.183
107. Based on available country information, the Tribunal accepts that the risk of the applicant suffering the following types of reprisals by money lenders if she returns to Vietnam is not remote or insubstantial because criminal (money lending) syndicates there have both national and international reach:
·     psychological pressure (which may be acute) by means of disruption to a debtor’s life. For example, playing loud music outside debtors’ homes, sending them funeral wreaths and/or embarrassing them publicly
·     intimidation
·     physical violence
·     property damage
·     asset seizures (such as already suffered by the applicant).
108. For the reasons stated above, the Tribunal is prepared to accept for the purposes of s 5J(1)(b) that despite the passage of 9½ years since the past events in Vietnam took place, if the applicant was to return to Ho Chi Minh City in the reasonably foreseeable future there is a real chance that the loan sharks would identify and locate her and seek to harm her, not only for defaulting on the loans but also for fleeing to Australia and evading them consistently. The Tribunal finds that retribution by the loan sharks would involve at least either a threat to the applicant’s life or liberty, or significant harassment or ill-treatment of her for the purposes of s 5J(4)(b) and s (5)(a), (b) and (c).
109. Based on the country information cited above, the Tribunal accepts that illegal money lenders in Vietnam have the means and resources to stalk and locate those who default on loans. Although not without some degree of reservation, given that the Tribunal has accepted the applicant to be a credible witness who presented a truthful account of past events, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that the specific loan sharks with whom she transacted have the means and resources to find her regardless of where she would return to in Vietnam. The Tribunal finds that this would likely be through extended criminal networks throughout Vietnam. As such, the Tribunal is satisfied that in the specific circumstances of the applicant’s case, the real chance of persecution relates to all areas of Vietnam for the purposes of s 5J(1)(c).
110. The Tribunal finds that the essential and significant reason that the loan sharks in question would harm the applicant is because they want to recover the loaned funds and the substantial outstanding interest owing to them. These are the circumstances explained by the applicant in her evidence.
111. The Tribunal has carefully considered the applicant’s loan sharks claim but finds that the essential and significant reason that the loan sharks would harm her is not for one of the reasons outlined in s 5J(1)(a), including membership of any identifiable particular social group in Vietnam. In light of this, the Tribunal has considered whether state protection in Vietnam would be withheld from or denied to the applicant essentially and significantly for one of the reasons outlined in s 5J(1)(a).
112. In relation to protection available to the applicant from Vietnamese authorities, the Tribunal has considered the 2025 DFAT assessment that in Vietnam “the police are effective in maintaining law and order and providing protection to most people.”[4]
[4]   DFAT Country Information Report Vietnam (19 February 2025) para 5.8
113. Based on this current and reliable source of information, the Tribunal is not prepared to conclude that state protection is essentially and significantly withheld by Vietnamese authorities for one or more of the reasons outlined in s 5J(1)(a), particularly given DFAT reporting that police in Ho Chi Minh City detected and punished 404 individuals across 263 suspected cases of loan sharking in 2023, and a further 115 individuals across 63 cases in the first quarter of 2024[5]. As such, the Tribunal is not satisfied that the essential and significant reason for the harm in question is for one or more of the reasons mentioned in s 5J(1)(a).
[5]   DFAT Country Information Report Vietnam (19 February 2025) para 3.179
114. Having regard to the findings of fact above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning set out in s 5J. As such, the Tribunal does not find that the applicant is a refugee within the meaning set out in s 5H. For these reasons the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings on loan sharks claim – complementary protection criterion
115. Having found the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether in the alternative, she is able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk she would suffer ‘significant harm’ as a necessary and foreseeable consequence of a removal from Australia to Vietnam.
116. 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). Instances of ‘significant harm’ are exhaustively defined in the Act to include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
117. The Tribunal accepts that, if returned to Vietnam, [the applicant] would locate in a neighbourhood of Ho Chi Minh City with which she is familiar and where she would be in proximity to her [children].
118. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
119. For the reasons stated above, the Tribunal finds that there is a real risk that the applicant would suffer harm amounting to ‘significant harm’ from the loan sharks she transacted with, if she returned to Ho Chi Minh City.
120. Although not without some reservation, the Tribunal is prepared to accept that the loan sharks in question have resources and means to identify and locate debtors within Ho Chi Minh City (and other regions in Vietnam) and that in the specific circumstances of the applicant’s case they would find her if she returned to Vietnam and harm her - regardless of where she located within her home country. The Tribunal finds for the purposes of s 36(2B)(a) that there is not an area of Vietnam where there would not be a real risk that the applicant will suffer significant harm.
121. Media reporting highlights recent ongoing measures taken by Vietnamese authorities to combat the activities of illegal money lenders[6] [7] but it is also reported that low-level police corruption does occur in Vietnam and is somewhat normalised as part of a patronage network[8] and also that police may be unable to investigate and prosecute a loan shark because there is typically no written evidence of a loan.[9]
[6]   DFAT Country Information Report Vietnam (19 February 2025) para 3.181
[7]   Viêt Nam News “Loan shark busted, US$800 million in illegal lending” 27 July 2023
[8]   DFAT Country Information Report Vietnam (19 February 2025) para 5.6
[9]   DFAT Country Information Report Vietnam (19 February 2025) para 3.182
122. It remains that for the purposes of the complementary protection criterion and s 36(2B)(b), any protection the applicant could obtain from an authority of Vietnam would need to reduce the risk of harm to one that is less than a real risk. The Tribunal finds that despite efforts by Vietnamese authorities to combat illegal money lender organisations, this is an ongoing law and order issue in Vietnam and that the measures in place tend to be reactive and those that are preventative would not reduce the risk of harm to the applicant to one that is less than a real risk in the event that she is identified by the loan sharks in Vietnam.
123. The Tribunal finds that while there are microfinance institutions (working in collaboration with the Vietnam General Confederation of Labour) and the Vietnam Women’s Union providing loans to low-income individuals[10] allowing some options for indebted victims, the resources of such organisations are limited. As such, the Tribunal is not satisfied that the applicant would be able to rely on microfinancing institutions or women’s support services to an extent where no real risk of significant harm to her would remain.
[10] DFAT Country Information Report Vietnam (19 February 2025) para 3.180
124. The Tribunal finds that the real risk in question is not one faced by the population of Vietnam generally. As a person indebted to loan sharks, the risk is one faced by the applicant personally for the purposes of s 36(2B)(c).
125. Having regard to the findings of fact set out above, the Tribunal is satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk she will suffer significant harm.
126. For the purposes of s 36(3), the Tribunal finds that the applicant does not have a right to enter and to reside in any country apart from Australia.
DECISION
127. 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.
Date of Hearing: 12 May 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…