2112464 (Refugee)
[2025] ARTA 1668
•9 June 2025
2112464 (Refugee) [2025] ARTA 1668 (9 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2112464
Tribunal:General Member S Collins
Date:9 June 2025
Place:Melbourne
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 meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 09 June 2025 at 09:00 am
CATCHWORDS
REFUGEE – protection visa – Vietnam – loan shark victim – money lenders intimidate parents – fears harassment and violence – depression – complementary protection – could experience significant harm due to substantial amount borrowed and assumed wealth – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth [1999] HCA 14
Chan v MIEA (1989) 169 CLR 379
Chenafa v MIMA [1999] FCA 1432
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
Guo Wei Rong and Pan Run Juan v Minister of Immigration [1996] FCA 1263
Magyari v MIMA (Federal Court of Australia, O’Loughlin J, 22 May 1997)
MIAC v MZYYL (2012) 207 FCR
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Osman v United Kingdom (1998) 29 EHRR 245
Prasad v MIEA (1985) 6 FCR 155
Ram v MIEA (1995) 57 FCR 565
SZDGB v MIAC [2006] FMCA 341
SZLVZ v MIAC [2008] FCA 1816
SZNRZ v MIAC [2010] FCA 107
Velmurugu v MIEA [1996] FCA 1499Any 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 6 September 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 19 July 2020. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 10 April 2025 and 6 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father in Vietnam by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is entitled to a protection visa on the ground of loan shark victimisation. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Background
The applicant was born in [year] in Quang Binh province, Vietnam. He arrived in Australia under a student visa in May 2013 and this visa expired three years later. He lodged an application for a protection visa on 19 July 2020.
At the hearings, the applicant said that he was married and his wife still lived in Vietnam. He said that they were separated in 2012. He has a child who is now [age] years old but he did not mention this in his application form. He wrongly wrote in his application form that he was a Catholic; at the hearing, he said he had no religion. He said at the hearings that his parents were still alive and living in Vietnam and he has a brother in Vietnam. He said he has no family in Australia.
In Vietnam, he wrote in his application that he was self-employed. At the hearing, he said this was wrong and that he was the manager of a [branch] of a [Vietnamese] bank. According to the application form, he went as far has high school but, at the hearing, he said this was wrong and that he had completed professional qualifications in banking and finance.
He wrote in his application form that his only language was Vietnamese. At the hearings, he had some English but required the assistance of the interpreters throughout. He said that he came to Australia to study a [degree] at [University 1]. He undertook a 6-month course in English. However, he said, he did not begin the [course] because he had run out of money. He took a job in [Occupation 1] and he is now [an Occupation 3 at Workplace 2] in [Suburb 1].
He said that when he lost all his money in Vietnam, he could not return to Vietnam and he became depressed and withdrew from social contact. He limited himself to working at [Workplace 2]. He said that he did not know about protection visas until a housemate told him about them. He said that he paid someone to help him complete the application form. As he did not know English at all well, he did not know what this person wrote in his application. He said that was why there were so many errors in the application form.
Reasons for seeking protection in the application form
It is not necessary to set out in detail the reasons provided in the application form as to why he was seeking protection because the applicant said he did not write the reasons and he did not know what was written on his behalf. It is enough to say that the reasons are based on political opinion, that the applicant was a human rights/democracy activist in Vietnam and he feared persecution in Vietnam if he returned. The applicant at the hearings said that he was not and never had been involved in political activity and he did not hold any political views at all. At the hearings, he provided a completely different claim for protection, loan shark victimisation. Therefore, the Tribunal does not take this claim for protection based on political opinion any further.
Procedural history
The delegate sent the application a request for further information from the applicant about his stated claim on 5 August 2021. The applicant did not respond. He said that he did not recall receiving the letter.
The delegate’s decision is dated 6 September 2021. The applicant lodged an application to review the decision on 16 September 2021. The Tribunal sent the applicant a pre-hearing outreach form on 12 February 2025 and the applicant did not respond. He said at the second hearing that he did not understand the form and what it required of him. On 26 March 2025, he was sent a hearing invitation which included a form asking him to provide information about his application. He did not respond because, he said, he did not understand the hearing.
The hearing was listed to take place with other applications on 10 April 2025. The applicant gave evidence but the hearing was adjourned to 6 June 2025 so that the applicant could complete his evidence and provide witnesses.
At the next hearing on 6 June 2025, the applicant said that he approached some people here in Australia who could provide information about his circumstances but he said they were fearful of participating in the hearing and did not attend. However, at the second hearing, the applicant said that his parents had been continually harassed by loan sharks in Vietnam and so the Tribunal asked the applicant if it was possible to hear from his parents by telephone. He said that his mother was very ill and in hospital but the Tribunal was able to hear from his father who gave evidence without any notice and by telephone.
Further information about the applicant at the first hearing.
The applicant said at the first hearing that he came to Australia to study. He said that while he was here, he lost all of his money in Vietnam because of the consequences of the 2012 stock market crash. He said that he had invested heavily in the stock market. He borrowed from a bank to make the investment. The market crashed in August 2012 and so he borrowed money from illegal money lenders to repay the bank loan. He said that he had hoped that the market would get better so that he could sell up and repay the bank and pay out other loans. He managed to stay above water for a while but things crashed completely in 2013 and he lost everything. He said that, when he lost everything, he became depressed and withdrawn. He was worried about the loans in Vietnam which he could not repay because the persons from whom he borrowed money would threaten his family in Vietnam and he would be threatened if he went back. He said that he owes about [amount] Duong (or about AUD[amount]). He said that people were visiting his parents every month asking for repayment.
At the second hearing
The applicant said that he wasn’t seeing anyone about his depression and that he was not on any medication.
He said that he did not start his [degree] because he was depressed and broke and he had to find work. He found a job as [an Occupation 1] in [Workplace 2].
He said that the stock market crash in 2012 involved government officials and directors of [Bank 1]. He borrowed money from the bank to invest in the stock market. The value of his portfolio fell dramatically following the market crash. He had to pay the bank interest on the loan. He hoped the market would get better and the value of his portfolio would increase back to at least where it was before the crash. He was aware of illegal money lenders. He said that customers in his bank would use the services of illegal money lenders to pay off bank loans. He said that the directors of the bank put managers like himself under great pressure to grant loans to customers and so bank managers were aware that customers would go to illegal money lenders to get funds to repay bank loans and managers were told to turn a blind eye to it. He said the laws at the time were not very clear about whether private money lending was legal.
When he had to obtain finance himself to repay the bank loan, the applicant said he knew where to go to get funds, the illegal money lenders his customers had used. He said he met illegal money lenders quite a lot over the next year or so. He would meet them regularly to draw down funds to pay the bank loan which was securitised against his family’s and his parents’ homes. The money lenders made him sign some documents and they took copies of his identification documents. He said he knew that the money lenders charged very high rates of interest and they were associated with criminal gangs but he was confident he would be able to pay them out when the market improved.
The applicant said that the last time he visited them was shortly before he left for Australia, in April 2013. He was later told by his parents that men working for these money lenders visited him and said he owed them a total of [amount] Duong.
In Australia, he said that the stock market did not recover and he could not repay both the bank and also the money lenders. As his home and his parents’ home were collateral for the bank loan, he sold up what he had and repaid the bank. He was not able to repay the money lenders.
When asked if the money lenders were still interested in him, he said that people visited his wife several years ago asking about him and for the loans to be repaid. She moved to a different area and they have not bothered her since. However, his parents have told him that men visit them at their home every month or so, asking about him and when they can be repaid. He said they would hang around the house all day. Sometimes, they would enter the house uninvited and just sit there intimidating his parents. They would also stand outside the house and shout out at his elderly parents. He said he was told that the last time these men visited was about two weeks ago. He said that sometimes his parents would call the police to get rid of these men. The police would come by and warn them off but they would not arrest them and the men would come back later.
The applicant said that he was worried that if he went back to Vietnam, they would harass him and they may threaten violence against him or caused him violence to get the loan repaid. He said that he could not be sure if the police would help. He was aware of a corruption problem amongst the Vietnamese police.
He said that Vietnam is a small country and he would stick out wherever he went. He said that these people could find him and, in any case, they knew where his parents lived.
The Tribunal heard from the applicant’s father in Vietnam by telephone. He gave evidence without any prior notice. He was a retired [Occupation 4]. He said his wife was sick and in hospital. He said that men would come to his home and make threats looking for his son and demanding that the loans be repaid. He told them his son was not in Vietnam and they were old people with no money. Even so, he said that they would ask him about the money. He said that they would come about once a month. They made threats to hit them. He called the police to get rid of them a few times and the police would come and warn them away but the men would come back the next month and do the same thing. He said the last time they came around was a few weeks ago.
The applicant said that if he went back, these men would know he had been living in Australia all these years and they would assume that he was wealthy because of it.
The applicant’s case
At the hearings, the applicant’s claim can be summarised in this way. The applicant fears serious harm would be carried out against him by the money lenders or people working for him to compel him to repay [amount] Duong. That harm would consist of serious harassment and abuse, threats of violence, and actual violence. The serious harm could be directed against his parents. There is a real risk of that harm being carried out. There is no effective state protection for him. Nowhere in Vietnam would be safe for him.
Country information
The February 2025 DFAT Country Report on Vietnam has this to say about organised crime and loan sharking in Vietnam:
2.83 Organised crime exists in Vietnam, some of which has national and international reach. Criminal syndicates are involved in gambling, prostitution, cybercrime, and trafficking in drugs, people, organs and wildlife. Criminal syndicates are also known to produce counterfeit documents (including documents used by immigration agents – see Prevalence of fraud), provide moneylending services (see Loan sharks) and extort businesses in the form of monthly payments for protection services. In-country sources, speaking in
October 2023, said businesses providing ‘night services’ (restaurants, nightclubs, karaoke bars) were most likely to be targeted for extortion, with the quantum determined by how much money a given business generated (that is, the more money a targeted business generated, the more it paid in protection money). According to in-country sources, organised criminal activity was most prevalent in border areas, particularly along Vietnam’s border with Cambodia; it was less of a concern in Hanoi (they said there was more organised crime in Ho Chi Minh City than Hanoi).
2.84 Vietnam’s Ministry of Public Security (MPS), which is responsible for internal security and oversees the police, reported dismantling nearly 600 criminal syndicates in 2022, and local media reported the MPS disrupted several criminal syndicates involved in the production of counterfeit documents in 2024. In-country sources said law enforcement most actively targeted criminal syndicates engaged in people and drug trafficking and cybercrime.
2.85 While they are active, in-country sources reported in October 2023 that criminal syndicates posed a low risk to the average person, and, where somebody became a target, were more likely to be subjected to intimidation, psychological pressure and other forms of harassment, including online, than physical violence (see also Loan sharks). People affected by criminal syndicates, including businesspeople subjected to extortion, can access state protection via the police; however, they may be reluctant to do so in practice due to perceived connections between criminal syndicates and the police and associated fears of reprisals, as well as perceptions the police response would be slow and bureaucratic (in-country sources said most instances of extortion were not reported for these reasons). Likewise, people affected by criminal syndicates can relocate internally relocate internally, although perceived connections between criminal syndicates and the police – and associated fears that one’s new location could be disclosed – may act as a deterrent in practice.
2.86 In-country sources that DFAT spoke to in October 2023 were not aware of the Government of Vietnam employing criminal syndicates to harass and intimidate people.
3.175 A ‘loan shark’ is a moneylender who charges extremely high rates of interest, typically under illegal conditions. Money loaned under such conditions is known as ‘black credit’ in some contexts, including in Vietnam. People unable to readily access formal financial services (including due to a lack of legal documentation), those with poor credit histories and those in urgent need of cash are most likely to seek black credit.
3.176 Loan sharks operate in Vietnam. According to in-country sources, as of October 2023, loan sharks were most prevalent in Ho Chi Minh City and other southern provinces, and more ‘hidden’ in Hanoi, where, as the administrative capital, security was tighter. In-country sources said loan sharking was a countrywide problem: organised criminal syndicates provided loan services to anybody who needed them (with loans reportedly provided up to 30 times the official cash rate). According to the United Kingdom’s Home Office, unofficial moneylending services may also be provided by neighbourhood money lenders, which were less likely than criminal syndicates to charge high interest and employ harassment to recoup debts. DFAT cannot attest to how widespread illegal moneylending in Vietnam is but notes that informal moneylending services are widely available, including online, and sometimes advertised openly (e.g. fliers on utility poles or through social networking platforms like Facebook, TikTok and Zalo). According to local and international reporting, people can borrow money from illegal moneylenders in Vietnam with minimal to no collateral.
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.
3.178 In-country sources reported that loans from illegal moneylenders were often used to repay gambling debts or purchase ‘migration packages’ to third countries; with respect to the latter, migration agents were behind these loans in some cases. Illegal moneylending is also often linked to human trafficking. Demand for illegal moneylending services is thought to have increased during the COVID-19 pandemic and associated economic disruptions.
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.
3.180 In-country sources reported in October 2023 that the Government of Vietnam had taken measures against loan sharks in recent years, including by tightening conditions for debt collection companies. The Prime Minister has issued multiple directives to strengthen government efforts to prevent and combat loan sharking, including in 2019 and 2023. Official Telegram No.766 on strengthening solutions to prevent, stop and handle “black credit” activities, issued by the Prime Minister in August 2023, requested relevant agencies – including the State Bank of Vietnam (Vietnam’s central bank), the MPS and the Ministry of Information and Communications – to, inter alia: strengthen inspections of credit institutions’ operations; diversify loan offerings and banking products to meet peoples’ legitimate borrowing needs; promptly detect, delete and prevent online material related to black credit; and promote awareness of the consequences of black credit. In a move designed to undercut loan sharks, in 2022, the State Bank of Vietnam directed consumer finance companies to work with the VGCL to offer small loans at preferential rates of interest to union members and employees. According to local media reporting in June 2023, at least 65,000 people had utilised this scheme, which local media indicated remained active as of July 2024. Capital Aid for Employment of the Poor (CEP), a microfinance institution active in the south, provides loan and savings products in collaboration with the VGCL to low-income workers and poor labourers, including loans for emergency use. Loans range from
VND15 million (approximately AUD945) to VND50 million (approximately AUD3,150), repayable over 12 to 36 months at interest between 0.4 and 0.64 per cent. In-country sources reported in November 2024 that other organisations also provided microfinance for small businesses and individuals, including the Vietnam Women’s Union (which has 20 million members nationally).
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), including ‘Goldvay’, ‘sugarvay’, ‘findong’, ‘wellvay’, ‘cfcash’ and ‘baovay’.
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. See also intersectional risks for victims of human trafficking.
On the police, there are these comments:
5.4 Vietnam has two primary internal security units, both overseen by the MPS: (1) the People’s Security Force, which collects intelligence on activities that may damage national security; and (2) the People’s Police Force, which is responsible for social order and public safety. The People’s Police Force also manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control and household registration. In-country sources estimated 10 per cent of police officers were women in
October 2023.
5.5 Police operate at national, provincial, district and commune levels. The distinction between different police units may not be obvious, except for traffic police, who wear a different coloured uniform. Commune police often have lower salaries and fewer benefits than police at the district, provincial and national levels. In-country sources reported in October 2024 that police in urban areas were more likely to have access to training and development opportunities compared to police in rural areas, although the MPS was working to address this. In general terms, though, police were well trained, and many had degrees in policing or higher-level vocational education. They are considered capable.
5.6 Police corruption occurs, although a distinction must be made between high- and low-level corruption. Corruption may take the form of ‘coffee money’ (a small payment at the side of the road), which may, in turn, be paid to superiors as part of a patronage network. This practice may be accepted domestically, and not necessarily recognised as corruption, by the average person in Vietnam. For example, in-country sources speaking in October 2023 said it was common for police to receive payments from sidewalk food vendors who operated without permits. In-country sources also said traffic police may be bribed to waive certain offences, like crossing a red light, speeding or operating an unregistered vehicle (bribes for drink driving or causing an accident were less likely to work). High-level corruption, including payments by organised crime, is much less tolerated, more so in the current environment (see Operation Blazing Furnace under Corruption). Where it occurs, high-level corruption, including by police, is very likely to be investigated and severely punished.
5.7 According to international media reporting, local police occasionally used thugs to suppress protest activity. State protection from the police would not necessarily be available in such circumstances. More broadly, and for the most part, the police can and do provide state protection where it is required.Findings
General principles
In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims’. [1] See also UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’):
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
The courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[2] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In this case the applicant appeared before the Tribunal via video link to give evidence. The Tribunal is aware of the difficulties faced by refugee applicants, including nervousness and anxiety of appearing before the Tribunal, and stress caused by separation from home and family, especially in the light of the guidance contained in the Gender Guidelines. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims.
[2] SZNRZ v MIAC [2010] FCA 107 at [20]
However, the mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. That an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. The applicant must satisfy the Tribunal that all the statutory elements are made out. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. Under s s.5AAA of the Act, the Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[3]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
On these issues of credibility, the Tribunal is mindful of the warnings in the cases such as CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs[4] Guo Wei Rong and Pan Run Juan v Minister of Immigration[5] and Abebe v Commonwealth.[6] In Guo Wei Rong and Pan Run Juan at [26]:
It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
In Abele at page 22:
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
Real chance test
[4] [2025] FCA 97
[5] [1996] FCA 1263
[6][1999] HCA 14
The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[7] The Court held that ‘well-founded fear’ involves both a subjective and objective element. The definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. Per Dawson J in Chan:[8]
[7] (1989) 169 CLR 379 at 396
[8] Chan v MIEA (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263.
The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. Whether an applicant has a genuine fear is a question of fact. The relevant question is whether the applicant has a present fear of a risk of harm in the reasonably foreseeable future. A past lack of fear or trepidation is not necessarily inconsistent with a well-founded present fear of future harm.[9]
[9] SZDGB v MIAC [2006] FMCA 341 at [19]
For a fear to be well-founded, there must be a factual or objective basis for that fear. Thus, ‘a well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified.[10] A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted. In Chan v MIEA Mason CJ, the expression ‘a real chance’:[11]
[10] Chan v MIEA (1989) 169 CLR 379 at 429
[11] Chan v MIEA (1989) 169 CLR 379 at 389
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
See also McHugh J:
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted.
Obviously, a far-fetched possibility of persecution must be excluded.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution Dawson J stated:[12]
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[12] Chan v MIEA (1989) 169 CLR 379 at 429; Chan v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:[13]
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.Nationality
[13] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
According to the protection visa application, the applicant claims to be a citizen of Vietnam and provided a copy of the biodata page of his Vietnamese passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is and a national of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Credibility issues
The delay by the applicant in submitting the application for a protection visa or his failure to respond to requests for further information made to him by the department or the Tribunal complicated the applicant’s case. As to delay, the applicant said that he came to Australia to study and when he stopped studying, he stayed on here outside of immigration control for a further three years before applying for protection because he was not aware of the existence of protection visas. A delay without an explanation in making a protection claim can affect the credibility of an applicant’s claim that they have a genuine fear of persecution. The Tribunal had difficulty accepting the applicant’s claim that he did not know about protection visas when he was part of the Vietnamese community in Australia and worked and lived with Vietnamese people. He explained that the economic failure he experienced in Vietnam caused him to be depressed and to become withdrawn. He said he did not consult anyone about his depression.
On balance, the Tribunal accepts his explanation for the delay. In Vietnam, he was a professional person with a serious position and who enjoyed a relatively high level of income and status. The Tribunal accepts that his financial failures would have caused him humiliation and embarrassment and that it was a cause of the end of his marriage and that, in Australia, he was isolated from family and friends in Vietnam. In Australia, he became [an Occupation 1] in Australia. His study plans were completely disrupted. At the hearing, he presented as a quiet-spoken and sincere person discussing matters that caused him discomfort and embarrassment. Accordingly, in the circumstances, the Tribunal accepts there were reasons for the delay in making the application and so it does not ultimately undermine his overall credibility.
Similarly, the Tribunal finds that the failure on the applicant’s part to take a more responsive approach to the progress of his application does not undermine his credibility. It is not at all uncommon for applicants with genuine claims not to take active steps regarding their claims until very late in the process.
Overall, the Tribunal found the applicant to be a truthful witness. He made reasonable concessions and he did not try to bolster his evidence with unsupported claims when he had opportunities to do so. While loan shark claims, because of their prevalence, are perhaps treated with a higher degree of scepticism than other kinds of claims, the Tribunal was impressed by the evidence about the context of the applicant’s financial problems and his reasons for turning to the illegal lending market. The 2012 financial crisis in Vietnam is well-known and matches the applicant’s account of how it affected him.[14]
[14] Bank restructuring in Vietnam, East Asian Forum, 7 April 2023
The Tribunal was also impressed by the evidence of the applicant’s father. The suggestion that the Tribunal could speak to his father was made to the applicant by the Tribunal during the hearing during the applicant’s evidence. Because of technical issues, there was no way to alert this witness to the fact that he was going to give evidence until the Tribunal telephoned him. He therefore had no notice of the fact that he was going to give evidence and so no time (if he was minded to) to prepare his evidence. This lent the witness’ evidence a high degree of authenticity.
Serious harm
The Tribunal accepts that the harm that the applicant fears – serious harassment, threats of violence, actual violence – directed at himself or his family is serious harm within the meaning of s 5 of the Act.
Systematic and discriminatory and for a s 5J(1)(a) reason
The only relevant reason for the persecution would be membership of a particular social group. The Tribunal does not accept that victims of loan sharks would be members of a particular social group. Section 5L of the Act defines membership of a particular social group in these terms:
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.The use of loan sharks according to the country information is prevalent across the Vietnamese community, even though it is illegal and discouraged by the Vietnamese government. Using a loan shark may be a common characteristic but it is not immutable or innate; nor is it so fundamental to a member’s identity or conscience that they should not be forced to renounce it; and nor does it distinguish the group from society. Accordingly, victims of loan sharks are not members of a particular social group as the term is understood in the Act.
Nor would the persecution be systematic and discriminatory for a s 5J(1)(a) reason. Fear of revenge or extortion does not come within the scope of the Convention unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason.[15] In Ram v MIEA the applicant claimed that he was being extorted on the basis that he was a member of a particular social group - namely villagers who had gone abroad and returned with money, or other wealthy Sikhs. The Full Federal Court rejected this contention. Justice Burchett stated:[16]
In the present case, quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as a sufficient group, it is the greater difficulty of saying that the attacks feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. … [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.
In Chenafa v MIMA, the Federal Court observed that:[17]
There are a considerable number of authorities in this court to the effect that extortion of funds from victims is not necessarily evidence of persecution for a Convention reason, in view of the consideration that there may be many other grounds on which money is sought to be extracted in a criminal way from citizens of a country.
Effective state protection
[15] Magyari v MIMA (Federal Court of Australia, O’Loughlin J, 22 May 1997) at 16–17. Velmurugu v MIEA [1996] FCA 1499 provides another example of revenge which was found to be unrelated to a Convention ground.
[16] Ram v MIEA (1995) 57 FCR 565 at 569
[17] Chenafa v MIMA [1999] FCA 1432 at [12]
The Tribunal finds that there is available to the applicant effective state protection, at least as the concept is to be applied under the refugee criterion. It has been held by Australian courts that a state is not required to guarantee the safety of its citizens from harm caused by non-state agents. In MIMA v Respondents S152/2003, Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[18] The joint judgment in MIMA v Respondents S152/2003 refers to the obligation of the state to take only ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’, or a ‘reasonably effective police force and a reasonably impartial system of justice’ indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[19] Therefore, an unwillingness to seek protection will be justified where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.
[18] (2004) 222 CLR 1 at [26]
[19] (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245
The Tribunal finds that Vietnam has a criminal justice system that matches international standards. It has laws criminalising loan shark activity. The Vietnamese authorities are taking active steps to disrupt loan shark gangs. Accordingly, the Tribunal finds that there is adequately effective state protection available to the applicant. The Tribunal finds, applying s 5LA of the Act, that the applicant can access the protection, the protection is durable; and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Conclusion as to the refugee criterion
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution on the ground of loan shark victimisation. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
The Tribunal accepts that the harm that the applicant fears could be significant harm within the meaning of the Act as torture, degrading treatment and, possibly, arbitrary death.
The next question is whether there is a real risk that the application would experience the harm. The ‘real risk’ test under the complementary protection criterion is the same as the ‘real chance’ test under the refugee criterion. The Tribunal finds that it would not be too remote, far-fetched or speculative that the applicant could experience significant harm were he to return to Vietnam:
(1)[Amount] Duong is a substantial amount and the lenders would be highly motivated to take steps to be repaid.
(2)They are still be interested in the applicant, his whereabouts, and in being paid.
(3)Police involvement, as limited as it has been, has not deterred the lenders.
(4)The lenders would assume that the applicant is wealthy because he has lived in Australia for many years.
The Tribunal finds that relocation would not reduce that risk to less than a real risk. Vietnam is a densely populated but small country. The applicant speaks Vietnamese with a middle Vietnamese accent so he would have difficulty keeping a low profile or concealing his identity or location for very long; the Vietnamese state keeps registration records of internal movements; and the lenders know where his parents live. The Tribunal also accepts that the lenders and others would see the applicant as being wealthy, were he to return to Vietnam, because he had lived in Australia for so long.
As to effective state protection, the concept is applied in a different way under the complementary protection criterion. Under s 36(2B) of the Act, there is taken not to be a real risk of significant harm if 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’. The Tribunal has earlier found that the applicant would receive effective state protection when considering the refugee criterion. In MIAC v MZYYL the Full Federal Court held that, to satisfy s 36(2B)(b), the level of protection offered by the receiving country, for the purposes of considering complementary protection must reduce the risk of significant harm to something less than a real one.[20] The Court expressly rejected the argument that s 36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’. Instead, it was held that the provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm.
[20] (2012) 207 FCR
Police everywhere are necessarily reactive in that they tend to act only on a complaint. In this case, the applicant would have to experience significant harm before the police would investigate. Further, the evidence is that the lenders have not been deterred by the police; and the police response has itself been limited and hardly robust. They would also be highly motived, given the size of the debt, to take steps to attempt to obtain repayment from the applicant. Even though there is effective state protection available to the applicant under the refugee criterion, the Tribunal finds that it is not available to him under the complementary protection criterion.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 meets the following criteria:
• s 36(2)(aa) of the Migration Act.
DATES OF HEARINGS 10 April 2025 and 6 June 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.
…
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