2116018 (Refugee)
[2025] ARTA 1889
•11 August 2025
2116018 (REFUGEE) [2025] ARTA 1889 (11 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Linh Minh Tran (MARN: 0958538)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2116018
Tribunal:General Member M Bruce
Date:11 August 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 11 August 2025 at 3:54pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – business robbery – physical assault – fear of killing – attack on home – blackmail from employer – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 79
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 351, 367, 499
Migration Regulations 1994, Schedule 2CASES
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1
Mohammed v Minister for Immigration & Anor [2017] FCCA 2356Any 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 18 October 2021 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 October 2020. The applicant’s claims as stated in their application to the Department are that:
a) In 2010, the applicant was working in a nightclub and casino for the [Criminal Gang 1] as [an occupation 1] and was responsible for club’s money.
b) One night the applicant was in the office after the club had closed when she was tied up and beaten by [strangers]. Two of the strangers took money from the cash box before they covered her head with a black mask, beat her again and escaped.
c) The applicant’s next memory is of being in hospital with a drip. After she recovered and returned to work her boss began arguing with her and blaming her for the robbery in which $[amount] was taken. The applicant denied any involvement, but her boss did not believe her as the CCTV was broken and he suspected that the applicant was complicit in the theft. The applicant’s boss demanded she return the money under threat of harm.
d) The applicant’s boss sent an agent to vandalise the applicant’s car and threaten physical harm against the applicant’s person. The agent caused unspecified harm to the applicant’s family. The applicant was thereafter persistently threatened and blackmailed.
e) The applicant did not make a police report as she did not believe the police would be able to adequately protect her and had been threatened that if she went to the police the [Criminal Gang
f) 1] would break her hand.
g) The applicant did not attempt to move to a different part of Vietnam to avoid harm.
h) If the applicant is returned to Vietnam, said threats will be carried out against her.
i) The authorities are unable to afford the applicant adequate protection.
j) Relocation within Vietnam will not reduce the chance or risk of harm.
On 16 September 2021 the applicant was sent correspondence under section 56 of the Act setting out various aspects of the applicant’s claim which gave the delegate cause to doubt the credibility of the applicant’s claim and inviting the applicant to comment. The applicant did not respond to this invitation.
The delegate refused to grant the visa on the basis that the applicants claims were not credible.
Applicant’s claim before the Tribunal.
On 7 November 2021 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision.
On 14 October 2024, the AAT ceased to have effect, and the Administrative Review Tribunal (the Tribunal) came into effect.
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1.) Act 2024 (the Transitional Act), applications made to the AAT that were not finalised prior to 14 October 2024 are taken to be applications made to the Tribunal.
Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal and the Tribunal is authorised to continue and finalise such proceedings in accordance with the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
On 27 February 2025 the applicant was notified that their file was being prepared for hearing. On the same date the applicant’s representative filed a statutory declaration of the applicant setting out the applicant’s request that the Tribunal refer the matter for ministerial intervention under section 351 of the Act and the grounds upon which the applicant asserted there were unique or exceptional circumstances that merited the referral.
On 27 May 2025 the Tribunal advised the applicant that the matter had been set for hearing on 7 July 2025.
On 1 July 2025 the applicant’s representative filed written submissions reiterating the applicant’s request that the Tribunal refer the matter for ministerial intervention under section 351 of the Act and the grounds upon which the applicant asserted there were unique or exceptional circumstances that merited the referral in materially the same terms as the applicant’s submissions of 27 February.
The applicant appeared before the Tribunal on 7 July for hearing. The Tribunal sought to confirm whether the applicant maintained their substantive claims for protection as expressed in the delegate’s decision. The applicant’s representative indicated that the applicant maintained those claims.
The Tribunal sought to confirm how the applicant wished to proceed with their application before the Tribunal. The applicant’s representative indicated that the applicant requested a decision on the papers and that the Tribunal refer the application for Ministerial Intervention under section 351 of the Act.
The Tribunal noted that, in considering such a request, the Tribunal would be obliged to have regard to the Ministerial Guidelines,[1] which proscribe the circumstances in which the Minister does and does not wish to consider intervening.
[1] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
The Tribunal noted that one of the circumstances proscribed by the Ministerial Guidelines is where the applicant could apply for a Partner visa onshore but for being subject to an 8503 (no further stay) condition and a request for a waiver of that condition has not been sought or decided.
The applicant’s representative confirmed that the applicant was subject to an 8503 (no further stay) condition and that no such waiver had been sought by the applicant.
The Tribunal noted that the Ministerial guidelines indicate that, in such circumstance, the Department will finalise any referral by the Tribunal without bringing it to the attention of the Minister. The Tribunal noted that, pursuant to Driver J Mohammed v Minister for Immigration & Anor [2017] FCCA 2356 [29], the Tribunal has no duty to consider such a request and expressed its view that it would not be in the interest of due administration for the Tribunal to consider such a request.
The Tribunal noted that it may have cause to doubt the credibility of the applicant’s substantive claims for protection; noting that the applicant was on notice that their claims lacked substantiation as of receipt of the Department’s section 56 letter, and that the applicant had not submitted further substantiation or explanation as to why such was unable to be provided.
An adjournment was granted for the applicant’s representative to seek instructions about how the applicant wished to proceed.
The hearing resumed and the applicant’s representative indicated that the applicant wished to proceed to a hearing and requested an adjournment in order to prepare submissions.
The Tribunal sought to confirm whether the applicant maintained their substantive claims for protection as expressed in the delegate’s decision. The applicant indicated that they did not know what those claims were. The Tribunal outlined the applicant’s claims as expressed in the delegate’s decision. The applicant resiled entirely from those claims.
The Tribunal advised the applicant of the effect of section 367A of the Act and invited the applicant to have regard to this in their submissions.
The Tribunal, by order under section 79(1) of the Administrative Review Tribunal Act 2024, directed that the applicant to submit the following to the Tribunal by 22 July 2025:
1) A written statement setting out the applicant’s claims.
2) Any documents or other evidence relied on to support the application.
3) Any other material the applicant wishes the Tribunal to consider.
4) A list of all submission to the Tribunal and, if relying on claims or material not presented before the Department, a written statement setting out why the claims or material were not presented before the Department.
5) Written statements from any witness that the applicant intends to call to give evidence or, if the applicant intends to rely on a witness statement without calling the witness to give evidence, a signed statement with identity documents confirming the witness’s signature.
6) If any of the submission are in a language other than English, that they are accompanied by a NATTI certified translation.
The hearing was adjourned and resumed on 25 July 2025.
In compliance with the order of 7 July 2025 the applicant’s representative filed a written submission dated 18 July 2025 confirming that the applicant resiled entirely from their claims as advanced before the Department and reiterating the applicant’s request that the Tribunal refer the matter for ministerial intervention under section 351 of the Act and the grounds upon which the applicant asserted there were unique or exceptional circumstances that merited the referral
The applicant appeared before the Tribunal on 25 July 2025. At hearing the applicant confirmed that they resiled entirely from their claims as advanced before the Department and that they did not wish to raise any new claims before the Tribunal.
The Tribunal noted that, for the reason expressed above, the Tribunal was not minded to consider the applicant’s request that the Tribunal refer the matter for ministerial intervention under section 351 of the Act and enquired whether the applicant’s representative wished to be heard on that matter. The applicant’s representative indicated that neither he nor the applicant had any further submissions to make on that matter.
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 applicant has resiled entirely from their claims as advanced before the Department and has not advanced any claims for protection before the Tribunal.
The Tribunal is unable to identify any claims for protection arising on the material before it.
This being a de novo hearing, there are presently no claims for protection made before the Tribunal and, accordingly, the Tribunal finds that the applicant does not meet the refugee criterion in s 36(2)(a), or the alternative criterion in s 36(2)(aa).
Ministerial Intervention.
Pursuant to Section 351 of the Migration Act 1958 (Cth) the Minister may, if they think it in the public interest to do so, substitute for a decision of the Tribunal a decision that is more favourable to the applicant.
The Minister has published Ministerial Guidelines indicating the circumstances in which the Minister may wish to consider intervening in a case and the circumstances in which the Minister does not wish to consider intervening.[2]
[2] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
Section 7 of the Ministerial Guidelines specifies circumstances where the minister has predetermined that it is inappropriate to consider ministerial intervention and directed that the Department will finalise such case without referral to the minister.
The Tribunal notes the recent decision of the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 which confirmed that the Minister may exercise the power to make such a procedural decision in advance, so as to never consider applications from a specified class of case.[3]
[3] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 [16 per Kiefel CJ, Gageler and Gleeson JJ
One of the circumstances proscribed by Section 7 is where the applicant could apply for a Partner visa onshore but for being subject to an 8503 (no further stay) condition and a request for a waiver of that condition has not yet been sought or decided.
Section 8 of the Ministerial Guidelines authorises the Tribunal to refer an adverse decision to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in Section 4 of the Ministerial Guidelines.
The Tribunal notes that it is not directed in section 8 to have regard to the circumstances proscribed by Section 7 of the Ministerial Guidelines and, accordingly, it may refer an adverse decision to the Department if satisfied that there are unique or exceptional circumstances as described in Section 4 of the Ministerial Guidelines in circumstances that are proscribed by Section 7 of the Ministerial Guidelines.
The Tribunal notes that no duty arises during the Tribunal’s review of a decision of a delegate to consider a request that the Tribunal refer an adverse decision to the Department.[4]
[4] Mohammed v Minister for Immigration & Anor [2017] FCCA 2356 [29] per Driver J
While it remains open to the Tribunal to refer an application to the Department in circumstances proscribed by Section 7 of the Ministerial Guideline where it believes that the issues involved fall within the unique or exceptional circumstances described in Section 4 of the Ministerial Guidelines, it is not appropriate for the Tribunal to do so having had regard to:
a) Tribunal’s objectives in Section 9 of the Administrative Review Tribunal Act 2024 (Cth), and
b) The Ministerial guidelines which indicate that the Department will finalise such a referral by the Tribunal without referral to the minister.
The Tribunal notes that the applicant does not require the Tribunal’s imprimatur to seek ministerial intervention, and that the decision of this Tribunal does not prejudice the applicant’s ability to do so.
Having had regard to the matters set out above the Tribunal does not consider it appropriate to refer the decision to the department.
DECISION
The Tribunal affirms the decision under review.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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