2114863 (Refugee) - [2025] ARTA 1255

2114863 (Refugee) [2025] ARTA 1255 (30 May 2025)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2114863
Tribunal:General Member M Currie
Place: Sydney
Date:30 May 2025

CORRIGENDUM
Date of corrigendum:11 June 2025

alteration isPursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following decision made to the
The decision is altered to read:
The name of the applicant’s representative has been removed from the decision record as they no longer act for the applicant as of 28 May 2025
Statement made on 11 June 2025 at 1:23pm
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2114863
Tribunal:General Member M. Currie
Date:30 May 2025

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 30 May 2025 at 11:33am
CATCHWORDS
REFUGEE – protection visa – Vietnam – reported factory’s pollution to manager, who told her not to report further – beaten and threatened by gangsters – found after relocating – collusion between head of local government and factory – generally consistent claims and evidence but small, significant inconsistences and omissions – claim of passage of time and fading memory – obtained passports and travelled unhindered – delay in applying for protection – factory recently reported for pollution and warnings by mother – long residence, adjustment to lifestyle and employment prospects – separation from husband and child not significant harm – child a citizen of Australia and third country through father – no separate claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first applicant claims to be a national of Vietnam. Her daughter (the second applicant) claims to be a citizen of [Country] and Australia. The first applicant applied for a protection visa application on 19 August 2020 and the second applicant was attached to the application at a later date. The delegate refused to grant the visas on the basis that neither applicant was owed protection in Australia.
The first applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments. Though invited, the second applicant did not attend. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
BACKGROUND
The first applicant arrived in Australia in August 2008 on a student visa. She lived and studied in Australia until November 2009, when she returned to Vietnam for around two months. The first applicant returned to Australia for a second time in January 2010 on the same student visa. She has lived in Australia since that time.
The first applicant’s student visa expired in 2011. In August 2020 the first applicant submitted a protection visa application in her own name. Later her daughter (the second applicant) who had been born in Australia in 2014, was added to the protection visa application.
Evidence before the Department
As part of her protection Visa application, the first applicant provided a copy of a Vietnamese passport that was issued in her name in 2008. In the protection visa application, the first applicant outlined the following information and claims for protection:
·She was a Vietnamese citizen was born in [Year]. In Vietnam, she lived in Ho Chi Minh City with her family including parents and siblings.
·In Vietnam she worked in a [factory]. The factory was located near the water and released industrial pollution into a river. This led to many local persons suffering from cancer and lots of people died. The applicant reported these issues to her manager at the factory. Though she desired to see action taken, he told her not to report the matter further.
·Despite the warning, the applicant was determined to report the matter. On her way to report the matter to the authorities, she was approached by some gangsters and beaten by them. She was told that if she continued to report the matter, she would be killed. Similar threats occurred afterwards.
·After this event the applicant feared for her life, and though she wanted to report the matter she was prevented from doing so by the gangsters. She tried to move to another area, but she was constantly watched by the gangsters and they found her wherever she went.
·She decided to leave Vietnam. If she returns to Vietnam, she will be beaten by the gangsters and may be tortured and killed.
·The head of the local government is very powerful, and he is closely connected with the factory from which he receives profits. Local government cannot be relied upon to help. She cannot relocate because she would be found by the gangsters anyway, they have a wide network. She fled to Australia fearing for her life.
The second applicant’s protection visa application indicated that she and her father (first applicant’s husband) are [Country] citizens. After the second applicant was added to the application, several further documents about her were provided to the Department. Relevantly, these included a copy of an Australian birth certificate, a copy of a [Country] passport issued in the name of the first applicant’s husband (second applicant’s father), and a certificate issued by the High Commission of [Country] which indicated that the second applicant’s birth had been registered with the [Country] High Commission in Canberra.
In the s 65 Decision the delegate found that the first applicant was a citizen of Vietnam and that Vietnam was her receiving country. The delegate did not accept any of the first applicant’s claims about industrial pollution or gangsters or threats and found the first applicant was not owed protection in Australia. The delegate found the second applicant was a citizen of [Country] and her receiving country was [Country] but noted that the second applicant had not raised any claims for protection of her own, and was not a member of the same family unit of a person who was owed protection.
Evidence before the Tribunal
The Tribunal has considered the evidence and other documents provided by these applicants to the department including their protection visa applications, their identity documents and other documents. The Tribunal has considered movement records obtained from the Department and a written assessment of the second applicant’s citizenship produced by the Department in June 2021. The Tribunal has considered the claims for protection lodged in the first applicant’s protection visa application and her evidence about these issues provided in the 2025 hearing.
The first applicant attended a hearing before the Tribunal in May 2025. In that hearing, she gave the following evidence:
·She is a Vietnamese citizen who was born in [Year] in Ho Chi Minh city and who grew up there with her family.
·Around the age of [Age], she had secured work at a factory in the neighbouring province of Bình Dương. She rented a house in the province and commenced work at the factory. She worked in the [job task] section. The factory was located in a very large industrial zone where there were many factories. Soon afterwards she heard a rumour that the factory was releasing industrial pollutants into the local water supply, and this was poisoning local residents and killing them.
·Sometime later, after she had substantiated the rumour, the applicant reported the issue to the director of her company. He threatened her and warned her not to mention the pollution again. Around a week later at her home, the applicant was approached by a group of gangsters who beat her and threatened her. They told her never to mention the pollution again, and not to report it. They said if she mentioned or reported it again, she would be killed. Over the next three to four months, the gangsters returned to her home many times and threatened her in the same terms.
·Around mid-2007, the applicant could no longer put up with these threats. She quit her work at the factory and moved away, back to Ho Chi Minh City. Thereafter, she lived in Ho Chi Minh city at her sister’s house in hiding. She lived in hiding for around a year. Her uncle heard about her plight and assisted her to obtain a student visa for travel to Australia. She departed for Australia in August 2008.
·In Australia she studied. She returned to Vietnam in 2009 for two months, because her mother was sick. In January 2010 she returned to Australia for a second time and has lived here since then. She married in 2014 and had a child born the same year (second applicant).
·In 2019, the applicants mother warned her that the factory where she formerly worked had been reported for polluting the water supply in a nearby river. Her mother informed her that she was suspected of reporting the pollution to the authorities. Because of this Renewed interest in her, the applicant lodged her protection visa application in Australia in August 2020. However, she subsequently learned that the identity of the person who had reported the pollution was identified around 2022/2023. She no longer has any fears of returning to Vietnam.
·She is mainly Buddhist but has recently joined the Christians.
·The applicant cannot return to Vietnam now because she has adapted to her lifestyle in Australia. She does not wish to be separated from her family (who would stay in Australia) and she is too old to begin her life again in Vietnam. She does not know anybody in Vietnam and could not find employment there.
The tribunal has considered the evidence the applicant provided during her 2025 hearing before the Tribunal.
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 applicants meet the refugee criteria or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The first applicant claims to be a citizen of Vietnam who was born in that country in [Year]. She has provided biographical information in her protection visa application, and in her 2025 hearing before the Tribunal. The first applicant has also provided a copy of the biodata page from a Vietnamese passport that was issued in her name in 2008. The Tribunal has considered all of this material. The first applicant has established her identity to the Tribunal’s satisfaction. The Tribunal accepts that the first applicant is a citizen of Vietnam who was born in 1986. For the purposes of this decision, the Tribunal finds Vietnam is her receiving country.
The second applicant was born in Australia in [Year]. The applicant’s protection visa application asserts that she is a citizen of [Country]. An Australian birth certificate provided to the Department indicates that the second applicant is the daughter of the first applicant and her husband. The [Country] passport provided to the Department is issued in her father’s name, and so the Tribunal accepts that the second applicant’s father is a [Country] citizen.
The certificate issued by the [Country] high commission in Canberra indicates that the second applicant’s birth was registered with the [Country] high commission. During her Tribunal hearing, the first applicant indicated that this registration had occurred and that her daughter was a citizen of [Country]. In the circumstances, the second applicant’s identity is established to the Tribunal’s satisfaction. The Tribunal accepts that the second applicant is a citizen of [Country].
At the May 2025 Tribunal hearing, the first applicant gave evidence that her daughter (second applicant) had recently been granted Australian citizenship. Though the applicant did not provide any documentary evidence for this claim, the Tribunal notes that the second applicant was born in 2014 in Australia and more than 10 years have passed since her birth and so is eligible to obtain Australian citizenship. In the circumstances, the Tribunal accepts that the second applicant has been granted Australian citizenship.
Analysis and reasons
Second applicant claims
The Tribunal has accepted that the second applicant is a citizen of Australia. Though the second applicant was born in [Year], she was not initially including in the first applicant’s protection visa application and no claims were lodged in that application on her behalf. Though the second applicant subsequently submitted a protection visa application and was added to the application earlier submitted by her mother (first applicant), that application did not contain any protection claims. No protection claims have ever been lodged on behalf of the second applicant.
Does the first applicant for returning to Vietnam?
As the summaries above indicate, this applicant’s principal claim for protection is that she fears to return to Vietnam because around 2006/2007 she was threatened by gangsters who feared she would report pollution to the government authorities.
The applicant was questioned about these issues throughout her hearing in 2025. She was asked why she has delayed submitting her protection visa application until 2020 around twelve years after she arrived in August 2008. In the Tribunal hearing the first applicant gave further evidence about the events she claims occurred in 2006/2007; however she said that by around 2011 she felt that events in Vietnam had cooled down, and that she did not need to submit a protection application.
However, she says in 2019 the mother issued her with a warning. She says her mother told her the factory where she had previously worked have been reported for pollution violations and that the first applicant was suspected of being the person who had reported the factory. She said because of the warning she received from her mother in 2019, she had lodged her protection visa application in August 2020.
However, during the hearing the applicant also disclosed that around 2022/2023, the factory learned that she was not responsible for reporting the pollution violations in 2019 and that another, unidentified person, had been responsible. She said because of that reason, she no longer had any fears of returning to Vietnam and was able to do so. She said that instead, her primary reason to stay in Australia now, was to raise her daughter.
Since the applicant’s assertion that she no longer feared returning to Vietnam, seemed to undermine the applicant’s protection visa application, the Tribunal clarified the applicant’s comments with her on several occasions during the hearing. On each occasion, the applicant indicated that she no longer had a fear of returning to Vietnam. She said she wanted to stay in Australia to raise her daughter.
At the end of the May 2025 hearing, the Tribunal discussed various concerns about the applicant’s claims for protection with her. Many of these concerns related to the applicant’s claims about the events of 2006/2007 (and are discussed further below). However, the Tribunal also explained to the applicant that as she had clearly indicated she no longer feared returning to Vietnam, it appeared to the Tribunal that she was not owed protection in this country.
At that time, the applicant walked back her earlier assertion that she no longer feared returning to Vietnam. Instead, despite her earlier statements, she said she did still fear harm in Vietnam. She said that she had miscommunicated earlier in the hearing and that because she only has a low level of education and because she commonly speaks in three different languages (Vietnamese, limited English, limited Chinese), she frequently makes communication errors. She asserted she fear returning to Vietnam.
The Tribunal has considered the applicant’s explanation about this issue. The Tribunal is not satisfied that the applicant’s earlier assertion (that she did not fear returning to Vietnam) can be attributed to communication errors or the applicant’s limited education. As noted above, the Tribunal questioned the applicant carefully about whether she fears to return to Vietnam during the hearing and the applicant clearly stated she did not on multiple occasions. Furthermore, during the hearing, the first applicant disclosed that she had a Year 12 education and that she had additionally studied languages while she lived in Vietnam and studied in Australia for three years. While she does not have a tertiary qualification, the Tribunal is not satisfied the applicant can fairly be characterised as having a ‘low education’.

The Tribunal notes that the applicant only retracted her assertion (that she did not fear returning to Vietnam) after the Tribunal and indicated to her that her statements had the effect of undermining her principal claim for protection. In light of the applicant’s multiple clear assertions that she did not fear returning to Vietnam, the Tribunal did not find the applicant’s late reassertion of this claim (that she did fear harm in Vietnam) to be persuasive.
In this context, the Tribunal notes that though the applicant has characterised her decision to travel to Australia in August 2008 as having to flee Vietnam, on her own evidence, she returned to that country voluntarily in 2009 and spent around two months living there. In the Tribunal’s view, her return to Vietnam in 2009, just over a year after she said she had to flee for her life, suggests that she was not afraid of returning to that country in 2009.
Taking all these issues into account, the Tribunal is not persuaded by the applicant’s explanations or claims. In the circumstances, the Tribunal is not satisfied that the applicant genuinely fears returning to Vietnam.
[Factory], industrial pollution, threats from gangsters, 2019 warning
In her 2020 protection visa application, the applicant provided an account of her reasons for coming to Australia. That account was very brief and limited. The applicant provided more detail about her reasons for coming to Australia in her 2025 hearing before the Tribunal. She said that though she had grown up living in her parents’ home in Ho Chi Minh City in the south of Vietnam, around 2006 she took a job in the neighbouring province of Bình Dương. That job required her to live around an hour and a half away from her parents’ home in Ho Chi Minh City, and so she had rented a house near the factory. She said she worked in the factory for around a year and a half, until around mid-2007. She lived in the rented house during this period. She said the factory was in a large industrial area and that it was one of many factories in the area. She said she worked in the [work task] department of a factory which was responsible for [industrial function].
Soon after she joined the workforce at the factory, the applicant heard rumours about pollution problems in a local waterway. Though she was concerned, she initially did not report it because she wanted to confirm whether the rumours were true.
After she confirmed that the rumours were true, the applicant says that she reported the water pollution to her director. She wanted action taken about this issue because people were getting sick and dying. She said the director told her she should not report the matter further and threatened her. She said that around a week later, while she was at her rented home, gangsters came to a house and threatened her and beat her. They told her she should not report the water pollution further. She said that over the next 3 to 4 months they visited her many times and, on each occasion, threatened her and told her not to report the pollution.
Around mid-2007, the applicant left the factory and went into hiding. She went to her sister’s house in Ho Chi Minh City and live there in hiding for much of the next year, on returning to her parents’ home, in the evening. While she was in hiding at her sister’s home, and uncle assisted her to obtain a student visa for Australia. She departed Vietnam in August 2008 and came to Australia on the student visa.
Broadly, the account the applicant provided during her tribunal hearing was similar to the account in her protection visa application and this weighs in the applicant’s favour. However, there are some differences between the information in the protection visa application, and the information she provided in her 2025 hearing which are concerning.
In her protection visa application, the applicant said the time she was first attacked by gangsters was after she had reported the matter to her manager and occurred while she was walking to report the matter to the authorities. However, in her tribunal hearing, she said the gangsters had attacked her at her home, a week later. This is a small, but significant difference.
The applicant had difficulty explaining when the events had occurred. Initially she said that the events occurred throughout 2006/2007. Later she said they had occurred over a 3-to-4-month period ending in mid-2007. In the Tribunal’s view, the applicant’s explanations for what happened to her, when it happened to her and exactly what had happened, lacked important detail.
The applicant’s protection visa application indicates she lived in one house (her parent’s home in Ho Chi Minh City) for her entire life before coming to Australia. During her 2025 hearing, the applicant was asked where she had lived in Vietnam, and she said she had lived in two houses in Vietnam. First, she had grown up living in her parents’ house, and second, that that she had lived another rented house for the years she was employed at the factory. Initially she said she could not remember when she moved to the rented house. Later she said she moved to the rented home straight after she finished high school which was when she was 18 (around 2004). Later she said it was in 2003. Later again, she said she moved there in 2006, several years later. Her answers to questions about this issue were unclear, shifting and lacked detail. She stated she could not provide any evidence in support of her claim to have lived in rental accommodation in Bình Dương. Though she says she lived there for over a year, she said she could not remember the name of the town, or the location of the rented accommodation.
She later asserted that she had lived in a third house, her sister’s home. However, the applicant only mentioned the third house after the tribunal put it to her that as she had only lived two different houses in Vietnam and had moved out of the rental home in mid-2007, she must have returned to her parent’s home for the year before she came to Australia in August 2008.
In her protection visa application, the applicant said she had tried to relocate to avoid harm in Vietnam, but found she could not, because the gangsters were watching her and found her on each occasion. However, in her Tribunal hearing the applicant said that after she had left the factory went into hiding, nothing further happened her. Furthermore, the applicant had never mentioned any period living in hiding in her protection visa application or at any other time until her 2025 hearing. He failure to mention living in hiding, or living with her sister, until May 2025, around 17 years after her arrival is concerning. The tribunal is also concerned that the applicant’s claim to have lived in hiding in her sister’s house for a year, was only made after the Tribunal explained that as she had earlier asserted that she had only lived in two houses (parents’ house and rented accommodation), she must have returned to her parents’ house after mid-2007.
Though the applicant had made protection claims about working in a [factory] in her protection visa application, in another part of the application, she had answered a question about previous employment by indicating that she had never previously been employed.
During her Tribunal hearing the applicant discussed her time at the factory and her rental house at some length. The applicant said these were located in the neighbouring Bình Dương province and were part of a large industrial zone. However, though she claims to have worked there for a year and a half, the applicant could not identify the name of the town where the industrial zone and the factory were located. She said she could not provide any supporting evidence for her claims about the factory. She said she had no evidence of her employment there.
The Tribunal has considered all these issues carefully. The applicant has argued that the minor errors in her protection visa application, the passage of time and her failing memory accounts for any differences in her claims and her inability to provide any supporting evidence. The Tribunal accepts that time can affect a persons recall of events, and documents can be lost over time. However, in this case, the tribunal is not persuaded these are relevant factors.
On their own, the issues identified above may be very minor, but some are not. At the time the applicant claims these events occurred (2006/2007), the first applicant says she was a [Age]-year-old woman who was living independently. It seems very unlikely that she would be unable remember the name of the town where she lived and worked for more than a year. Despite multiple questions about this issue, the applicant could not identify the location of the factory, or the location of her rental home. She has not provided any other identifying details, such as the name of the polluted river, or the name of the factory which might identify the locality. In the Tribunal’s view the applicant’s inability to identify where the factory where she says she worked at for a year and a half, and where her rented accommodation was, weigh against accepting the applicants claims about these issues.
The applicant claims that throughout most of the period she has resided in Australia she had no fears about returning to Vietnam. However, in 2019 her mother warned her that the factory where she formerly worked had been reported for pollution, and that the factory suspected the applicant had been the person who reported the pollution to the authorities. The applicant cites this warning, as the reason she submitted her protection visa application.
However, this warning from the applicant’s mother was not mentioned in in the applicant’s August 2020 protection visa application and had never been mentioned before her May 2025 hearing. She is not able to provide any supporting evidence that this issue had been reported to the authorities in 2019. When the applicant was asked why she had failed to mention the 2019 warning in her 2020 protection visa application, she said did not feel she had to provide every bit of information in the application. In the Tribunal’s view the applicant’s explanation about this issue was unpersuasive. According to the applicant, it was this event (the 2019 warning) that prompted her to submit the protection visa application in the first place. If the applicant did genuinely receive a warning in 2019 as she claims, the Tribunal considers it would have been mentioned in the protection visa application.
Overall, the Tribunal is not persuaded by any of the applicant’s claims, or by her explanations. The applicant has not provided any independent or contemporaneous supporting evidence for any aspect of her claims for protection. She cannot identify where her principal claims occurred or where she lived when they occurred. There are differences between the accounts provided in her 2020 protection visa application and her 2025 hearing and while these may seem minor, they relate to important aspects of her claims, including where she was first attacked, and what happened to her in the period she remained in Vietnam. The applicant’s evidence about these issues was simply not persuasive.
Overall, the applicant has not persuaded the Tribunal that her account about any of these events is reliable. The Tribunal is not satisfied the applicant ever learned of pollution by a factory in Bình Dương, or that she reported pollution to her manager or director, or that she was threatened by him or by gangsters. The Tribunal is not satisfied the applicant ever went into hiding in Vietnam, or that she fled her country for these reasons.
The Tribunal notes that the applicant obtained her genuine Vietnamese Passport in May 2008 and in her hearing, she described her acquisition of that Passport as occurring smoothly and without problems. She later departed Vietnam in August 2008 and then returned in 2009. She departed Vietnam for a second time in January 2010. Country information before the tribunal indicates that Vietnam maintains strict exit control lists and that persons in Vietnam who are of interest to the authorities for a wide range of issues and that people of interest may face travel bans and questioning. The applicant has not claimed to have faced any such problems departing or returning to Vietnam and does not claim to be of any interest to the authorities. In the circumstances, the tribunal concludes the applicant was not of any interest to the authorities in Vietnam, or anybody else at any time in the past, including at the time of her departure. The tribunal is not satisfied the applicant would be of interest to anybody in Vietnam now.
Religion
During her Tribunal hearing the first applicant was asked about her religion. She said that she was “mainly” a Buddhist, but also that she had recently joined Christianity. When asked whether she could explain this further, the applicant said she had been approached on the street and handed religious leaflets and she “joined” the Christians for that reason.
However, she also claimed that she didn’t have strong religious views, and that she was happy to believe in any religion. She did not provide any further evidence about her Christianity or her religious views, nor did she lodge any protection claims about this issue.
The Tribunal has considered this issue carefully. The applicant’s very limited evidence about this issue was brief and lacked detail. She has not indicated she has been baptised or attended Christian services. Overall, given the applicant’s stated willingness to believe any religion, her assertion that she is mainly Buddhist, and that she does not have strong religious views, the Tribunal does not accept that the applicant has genuinely converted to Christianity. In the absence of any protection claims, or articulated fears about this issue, the Tribunal is not satisfied that she fears returning to Vietnam for this reason. The Tribunal will not consider this issue further.
Adjusted to Australia lifestyle
During her 2025 hearing, the first applicant asserted she could not return to Vietnam as she had lived in this country for a long time and had adapted to the lifestyle here. She said she could not return, was too old to ‘start again’, did not know anybody in Vietnam and could not find work in that country. The first applicant asserted that she wants to stay in Australia, and she does not wish to be separated from her family who would remain in this country.
The Tribunal accepts that the first applicant wishes to remain in Australia and live with her family. The tribunal accepts that the second applicant is an Australian citizen and there was no evidence before the tribunal that the first applicant's husband would be required to depart Australia. The tribunal accepts the first applicant's husband, and her daughter (second applicant) would not return to Vietnam. The Tribunal also accepts she has lived in this country for over a decade and is also willing to accept that she has, to some extent, adapted to life in this country.
However, the Tribunal notes that this applicant is a Vietnamese citizen who lived in that country for the first [Number] years of her life. Though she has lived in Australia for an extended period, she has not explained how or why this would prevent her return to Vietnam. She speaks the Vietnamese language and contrary to her claim to know nobody in that country, she has disclosed that her remaining family, including her mother and her [siblings] continue to reside in Vietnam. She has a year 12 education and has completed several years of further study in Australia. She has secured employment in Vietnam in the past and has not explained how or why she would be unable obtain work there in the future. While the Tribunal accepts the applicant is no longer as young as she was when she initially arrived in this country, the Tribunal is not satisfied that her age would lead to problems or mean that she would be unable to return to Vietnam and live in that country.
In the circumstances, even though the applicant has lived in Australia for an extended period, the Tribunal is not satisfied that the first applicant would be unable to return and reside in Vietnam for these reasons now.
Does the applicant satisfy the refugee criterion for protection?
For reasons provided above, the Tribunal is not satisfied the first applicant genuinely fears to return to Vietnam. The Tribunal is also not satisfied that the first applicant ever had knowledge of industrial pollution in Vietnam, reported industrial pollution, or was ever harassed by her manager or director, or by gangsters for those reasons. The Tribunal is not satisfied that the applicant was ever of interest to gangsters, or the authorities in Vietnam in the past, or that she would be of interest to anybody in Vietnam for those reasons now. The Tribunal is also not satisfied that the applicant’s lengthy period of living in Australia would prevent her from returning to Vietnam, or lead to a real chance of any harm in that country. The Tribunal is not satisfied the first applicant would face a real chance of any harm for any of the reasons she has put forward, if she returned to Vietnam. The Tribunal is not satisfied the first applicant has a well-founded fear of persecution for any reason.
The second applicant is an Australian citizen who has not lodged any claims for protection. Above, the Tribunal has concluded she would not return to Vietnam. The Tribunal is not satisfied the first applicant has a well-founded fear of persecution for any reason.
For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
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 has accepted that the first applicant does not wish to be separated from her family (husband & daughter) who could stay in Australia. The Tribunal accepts that any separation from her family would be difficult for her. However, there is no suggestion that any such separation would lead to the first applicant facing a real risk of being arbitrarily deprived of her life, facing the death penalty or facing torture. There is no evidence that any separation from family would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined. In the circumstances, the tribunal is not satisfied that the first applicant would face a real risk of significant harm in Vietnam.
The Tribunal has otherwise found that neither applicant would not face a real chance of harm arising from any of any of the claims for protection lodged by the first applicant. As ‘real chance’ and ‘real risk’ have been found to meet the same standard[1], it follows that they would not face a real risk of significant harm for these reasons. The Tribunal is not satisfied they would face a real risk of significant harm for any other reason. In the circumstances, the Tribunal is not satisfied that there is a real risk of significant harm for either applicant.
[1] MIAC v SZQRB (2013) 210 FCR 505
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of Hearing: 29 May 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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