2114097 (Refugee) - [2025] ARTA 1882

2114097 (Refugee) [2025] ARTA 1882 (11 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2114097
Tribunal:General Member D. Gordon
Date:11 August 2025

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

Statement made on 11 August 2025 at 5:00pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – Catholic – political opinion – pro-democracy and opposing the Communist Party – claims not credible – admission that only in Australia to make money to help her family – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2024
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 on 30 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 17 June 2020.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant was not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 6 August 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
CRITERIA FOR A 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicant is a national of Vietnam, which is also their receiving country for the purpose of their protection claims and assessments.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the applicant.
The applicant, in their protection visa application form claims as follows:
a.The applicant fears persecution on account of being pro-democracy and opposing the Communist Party of Vietnam; and
b.That the applicant would be also persecuted due to their Catholic religion.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicant’s merits review application form and the supporting documents on the file.
These materials did not contain any new claims.
HEARING BEFORE THE TRIBUNAL
The applicant appeared before the Tribunal and gave their evidence as follows.
The applicant stated she was born in Vietnam.
She was [age] years old as at the date of the hearing. She was not married and did not have any children.
Her mother and father are alive in Vietnam. She also has [siblings] in Vietnam.
She completed year [grade] level education in Vietnam.
Her house is in a rural area and her family is very poor and she helped her parents raise her younger siblings and she would work by making very little money carrying soil.
The applicant came to Australia in August 2018.
The Tribunal asked the applicant to give evidence about why she could not return to Vietnam.
The applicant said that to be honest and upfront, she wanted to thank Australia for hosting her for the last 7 years and that she did not have any problems with Vietnam that makes her fear returning.
That she comes from a poor family and she had the opportunity to come to Australia and work and she stayed back to work and make some money and send money back to her family and help her younger siblings.
She worked in Australia to help her family in Vietnam with money and help their future.
She wanted to come to the Tribunal and tell the truth.
She was only remaining in Australia to make some money.
She loves Vietnam.
She wanted to thank Australia and that Australia is a friendly place.
The Tribunal thanked the applicant for being honest and truthful.
The Tribunal said to the applicant that based on the above evidence, the applicant would not qualify for protection and the decision under review would be affirmed. The applicant understood this and understood she would not obtain a protection visa.
The Tribunal asked whether the applicant understood the decision would be affirmed. The applicant replied she did.
The applicant said she understand she would not obtain protection.
The applicant said she wanted to work further and pay taxes to Australia, or she would return to Vietnam and try and clear her Australian taxes if she could.
The Tribunal understood her willingness to pay taxes but advised the decision under review would be affirmed. The applicant said she understood.
The applicant had no further evidence to give and the hearing concluded.
COUNTRY INFORMATION
Tribunal has had regard to relevant DFAT country information from Vietnam.[1]
[1] DFAT Country Report for Vietnam.
[3.67] The CPV is the sole legal political entity in Vietnam – no other political entity can operate, and association with a political entity other than the CPV is prohibited (see also Country overview). Political expression that is critical of government policy or questions the legitimacy of the CPV is not tolerated.
[3.69] Vietnam is sensitive to the activities of foreign-based dissident organisations led by members of the diaspora, including the Viet Tan, and considers such groups ‘reactionary’ (some, including the Viet Tan, have been proscribed by the Government of Vietnam as terrorist organisations). According to international media, Vietnam has targeted dissidents outside of its borders in recent years, including high-profile cases in Thailand and Germany (see also Enforced or involuntary disappearances). In-country sources reported in October 2023 that Vietnam monitored dissidents abroad and their families inside Vietnam, who had also been subjected to questioning about their relatives’ activities and travel plans. DFAT is aware of reports of Vietnamese state agents attempting to attend closed door conferences organised by organisations of this profile. According to in-country sources, the Government of Vietnam had sophisticated surveillance capabilities and was able to monitor dissidents abroad, including online. The Washington Post reported in October 2023 that Vietnam attempted to hack the mobile phones of members of the United States’ Congress and American journalists, among others.
[3.70] Vietnamese people living abroad who have an established record of criticising the party and government, particularly those who are prominent in the diaspora, have high-profile affiliations with dissident diaspora groups and/or have large online followings and networks in Vietnam, are likely to be known to, and have their activities monitored by, Vietnamese authorities. This may occur online and through party sympathisers and informants within the diaspora. Vietnamese people living abroad with a lower profile, including people attending public protests or expressing anti-government views, including online, are likely to be of significantly less interest, and their activities may not necessarily be known to the authorities.
[3.71] DFAT assesses people living in Vietnam who openly criticise the party or government face a high risk of official discrimination in the form of arrest and imprisonment on national security grounds.
[3.83] The Viet Tan was proscribed as a terrorist organisation by the Government of Vietnam in October 2016. As a proscribed entity, it is outlawed in Vietnam and does not have an open presence there. The MPS considers anybody who participates in the Viet Tan or who lures or incites others to participate in the Viet Tan; sponsors or receives sponsorship from the Viet Tan; attends training courses organised by the Viet Tan; or places themselves at the Viet Tan’s direction to be an accomplice and sponsor of terrorism. In-country sources said that, given its terrorist designation, anybody suspected of belonging to the Viet Tan would face a high risk of arrest. According to in-country sources, a Vietnamese citizen abroad with an established pattern of behaviour posting online material supportive of the Viet Tan would likely be questioned on return, should their online activity become known to the authorities.
[3.84] The Viet Tan is an extremely sensitive topic in Vietnam and there are no known members inside the country (all known members are based abroad). The Viet Tan’s chair and general secretary are based in the United States, with representatives in several other countries, including Australia. The Viet Tan operates lawfully in Australia as an advocacy group. The Viet Tan is not listed as a terrorist organisation in Australia. At the time of publication, DFAT was unable to obtain authoritative information on the Viet Tan’s recruitment processes and how membership could be obtained.
[3.85] In January 2019, an Australian national reportedly belonging to the Viet Tan was detained in Vietnam and charged with ‘terrorism to oppose the people’s government’ (Article 113 of the 2015 Criminal Code) and entering Vietnam illegally from Cambodia. The Government of Vietnam accused the individual of luring and training others to participate in the Viet Tan for the purpose of conducting terrorism and sabotage. They were sentenced to 12 years’ imprisonment in November 2019 (five other defendants, all Vietnamese nationals, received prison terms of between three and 11 years). The Australian national returned to Australia via an international prisoner transfer and was released in July 2023 before their original prison term expired.
[3.86] DFAT assesses a known or suspected member of the Viet Tan, as a proscribed terrorist organisation, would face a high risk of official discrimination in the form of arrest and imprisonment, including on terrorism charges, in Vietnam.
[2.31] Transparency International ranked Vietnam 83rd out of 180 countries in its 2023 Corruption Perceptions Index (where one is least corrupt and 180 most corrupt). Vietnam’s score has improved significantly in recent years – it ranked 117th in 2018.
[2.32] The Law on Corruption Prevention and Combat (passed in 2005, revised most recently in 2018) prescribes the prevention, detection and handling of corruption in the public and private sectors. Acts of corruption identified by the Law on Corruption Prevention and Combat (2018) include: embezzlement; taking, giving or brokering bribes; abusing one’s official capacity for personal gain; and impersonation for personal gain. The Law on Corruption Prevention and Combat (2018) requires state and non-state organisations to implement preventive measures, inform competent state authorities of suspected acts of corruption, render cooperation with investigations, and protect the rights and interests of individuals who report, provide information or file complaints against corrupt activities (‘informers’). The Law on Corruption Prevention and Combat (2018) grants every citizen the right to discover and report acts of corruption, and the right to protection.
[2.71] Vietnam is a one-party state ruled by the CPV. Other political parties are prohibited. The 2013 Constitution designates the CPV as ‘the leading force of the state and society’. CPV members hold all senior government and military positions.
[2.78] The 2013 Constitution guarantees political, civil, economic, cultural and social rights in accordance with the law, including rights to freedom of opinion, assembly, association, religion and belief. These rights may be restricted for reasons of national defence, national security, social order, social morality and community well-being (and they regularly are in practice). The 2013 Constitution stipulates that all citizens are equal before the law and prohibits discrimination on political, civic, economic, cultural or social grounds.
[3.29] The 2013 Constitution guarantees the right to freedom of religion and belief – people have the right to ‘follow any religion or follow none’. All religions are equal under the 2013 Constitution. The Law on Belief and Religion (2016) prohibits discrimination and stigmatisation on religious grounds and forcing or hindering others in following or not following a religion or belief, including forcing somebody to renounce their faith.
[3.31] Vietnam recognises the legal status of 43 religious organisations belonging to 16 religious denominations. Recognised religions include Buddhism, Hoa Hao Buddhism, Catholicism, Protestantism, the Seventh-Day Adventist Church, Islam, Cao Daism, Cham Brahmanism and the Baha’i Faith. Distinct denominations within recognised religions must individually register with the state. According to the Government of Vietnam, in addition to legally recognised religious organisations, there were more than 3,700 registered, non-recognised religious groups operating in Vietnam in February 2024, including the Church of Jesus Christ of Latter-Day Saints (Mormons), the Assemblies of God, and the Vietnam United Gospel Outreach Church.
[3.54] Approximately 6 million people identified as Catholic at the time of the 2019 census, making Catholicism officially the single-largest religion in Vietnam
[3.59] DFAT assesses Catholics who belong to registered churches and are not politically active are free to worship, including in rural areas, and face a low risk of official discrimination.
[3.40] DFAT assesses members of recognised religious organisations and members of non-recognised but registered religious groups can practise their faith, including in rural areas, and face a low risk of official discrimination.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
The Tribunal sets out the applicable legal principles in assessing protection claims.
Section 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claim and to provide sufficient evidence to establish their claim.
The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[2]
[2] (1997) 191 CLR 559 at 596.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[3]
[3] (1997) 74 FCR 275 at 288.
A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[4]
[4] (1985) 6 FCR 155 at 169-70.
It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[5]
[5] [2006] FCAFC 61 at [76].

The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[6]
[6] (1994) 124 ALR 265 at [278].
CREDIBILITY ANALYSIS
The evidence of the applicant has given rise to credibility concerns which the Tribunal analyses below.
The applicant’s admission that she has no fears, loves Vietnam and remained to work
The applicant gave evidence that she has no fears, loves Vietnam and remained in Australia to work and send money back to her family.
The applicant said that to be honest and upfront, she wanted to thank Australia for hosting her for the last 7 years and that she did not have any problems with Vietnam that makes her fear returning.
That she comes from a poor family and she had the opportunity to come to Australia and work and she stayed back to work and make some money and send money back to her family and help her younger siblings.
The applicant gave evidence that she understood that she would not qualify for protection.
The applicant gave evidence that she understood that the decision under review would be affirmed.
Credibility findings
The Tribunal finds that the applicant’s claims to not be credible.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings on the material and evidence before it.
The applicant made up her claims to remain in Australia to work and send money back to her family.
The applicant loves Vietnam.
The applicant has no fears concerning Vietnam.
The applicant would not suffer any religious or political persecution in Vietnam.
The applicant would not suffer any serious or significant harm in Vietnam.
The applicant is ready to return to Vietnam.
The applicant’s claims are not credible.
REFUGEE CRITERION ASSESSMENT
To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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 and 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 along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.
In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[7]
[7] (1989) 169 CLR 379.
The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.
Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
The Tribunal refers to the credibility analysis undertaken above.
The applicant’s admission that she has no fears, loves Vietnam and remained to work
The applicant gave evidence that she has no fears, loves Vietnam and remained in Australia to work and send money back to her family.
The applicant said that to be honest and upfront, she wanted to thank Australia for hosting her for the last 7 years and that she did not have any problems with Vietnam that makes her fear returning.
That she comes from a poor family and she had the opportunity to come to Australia and work and she stayed back to work and make some money and send money back to her family and help her younger siblings.
The applicant gave evidence that she understood that she would not qualify for protection.
The applicant gave evidence that she understood that the decision under review would be affirmed.
The Tribunal accepts that the applicant loves Vietnam.
The Tribunal is satisfied the applicant has no fears concerning Vietnam.
The Tribunal finds that the applicant would not suffer serious harm if returned to Vietnam.
The Tribunal is satisfied the applicant would not suffer any religious or political persecution in Vietnam.
The Tribunal finds that the applicant’s claims are not credible.
As the Tribunal has found that the applicant’s claims are not credible, no further analysis can be undertaken as to whether protection obligations are owed.
Conclusion on refugee criterion assessment
The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed in Vietnam as their claim is not credible.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution due to fearing harm in Vietnam as their claims are not credible.

100. The applicant has made no other protection claims.
101. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.

103. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to her country of nationality, there is a real risk she will suffer significant harm.
104. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
105. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[8]
[8] [2013] FCAFC 33 at [246].
106. The Tribunal refers to the above credibility analysis and the factual findings in the assessment of the real chance of serious harm in the refugee criterion and relies on it.[9]
[9] The test for real risk of significant harm in assessing complementary protection is the same as the test for real chance of serious harm in assessing the refugee criterion per Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [243]-[246].
107. In ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Court stated:
Prior factual findings by reference to the criterion in s 36(2)(a) (the refugee criterion) may be germane to an assessment of an applicant’s claims to fear persecution under s 36(2)(aa) (the complementary protection criterion). There is, in such scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[10]
[10] [2021] FCCA 2024 at [34].

The applicant’s admission that she has no fears, loves Vietnam and remained to work
108. The Tribunal relies on the credibility analysis above.
109. The applicant gave evidence that she has no fears, loves Vietnam and remained in Australia to work and send money back to her family.
110. The applicant said that to be honest and upfront, she wanted to thank Australia for hosting her for the last 7 years and that she did not have any problems with Vietnam that makes her fear returning.
111. That she comes from a poor family and she had the opportunity to come to Australia and work and she stayed back to work and make some money and send money back to her family and help her younger siblings.
112. The applicant gave evidence that she understood that she would not qualify for protection.
113. The applicant gave evidence that she understood that the decision under review would be affirmed.
114. The Tribunal accepts that the applicant loves Vietnam.
115. The Tribunal is satisfied the applicant would not suffer significant harm if removed to Vietnam.
116. The Tribunal finds that the applicant’s claims are not credible.
117. As the Tribunal has found that the applicant’s claims are not credible, no further analysis can be undertaken as to whether protection obligations are owed.
118. The Tribunal is not satisfied there are 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 that the applicant will suffer significant harm.
119. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
120. Other claims
121. No other claims were put forward by the applicant.
122. No other claims arose on the material before the Tribunal.
Conclusion on complementary criterion assessment
123. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
124. The Tribunal wishes to record that the applicant was frank and honest with the Tribunal. Whilst her claims were not credible, her honesty at the hearing is acknowledged.
CONCLUSION
125. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION

128. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 6 August 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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

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

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