2116948 (Refugee)
[2025] ARTA 1910
•21 July 2025
2116948 (REFUGEE) [2025] ARTA 1910 (21 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2116948
Tribunal:General Member C Stokes
Date:21 July 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 21 July 2025 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – environmental protests – criminal gang – employment – economic conditions – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
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 then Minister for Home Affairs on 16 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Vietnam, applied for the visas on 2 January 2021. The delegate refused to grant the visas on the basis that delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
On 17 November 2021, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicants appeared before the Tribunal on 8 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English language. The applicants were unrepresented in relation to the review.
The issue in this case is whether one or both of the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; and, if one applicant is found to be a person in respect of whom Australia has protection obligations, whether the other applicant is a member of their family unit.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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
Applicants’ backgrounds and visa history
The applicants are a married couple. The first applicant is [an age]-year old male from Hue Province, Vietnam who is of [specified] ethnicity. The second applicant is [an age]-year old female also from Hue Province, Vietnam who is of [the same] ethnicity and of Buddhist faith.
They arrived in Australia in June 2017 as the holder of visitor visas. They applied for the protection visa on 2 January 2021.
The applicants travelled to Australia on apparently genuine Vietnamese passports. A copy of the biodata pages of the applicants’ passports are contained on the Departmental file. They have at all times stated that they are citizens of Vietnam, and they have been assessed on that basis by the Department. I find that the applicants are Vietnamese citizens and have assessed their claims against Vietnam as the country of nationality and the receiving country
Claims and evidence
The first applicant claimed in the protection visa application that he feared harm in Vietnam at the hand of gangsters due to him raising concerns about his state-owned workplace (a factory) polluting a nearby river making himself and others sick.
The applicants were not invited to attend an interview with the delegate. The delegate was not satisfied the applicants were of interest of the authorities and therefore found they were not at risk of serious or significant harm in Vietnam.
At the hearing the applicants provided further details about their background. They both explained that they had an acquaintance help them complete the visa application form, they did not understand what visa they were applying nor were they aware of the claims that were contained in it. The first applicant, when asked about the claims to fear harm by gangsters due to concerns raised about his workplace, said those claims were not true. They both claimed they came to Australia to work and wished to remain here to continue to work and support their children and parents in Vietnam.
Given the applicants had no understanding as to what visa they had applied for, I encouraged the applicants to seek migration advice about whether they ought to withdraw the application or proceed with it and allowed 10 days following the hearing to do that before making a decision on the review application. The applicants did not withdraw or provide any further information or evidence within 10 days.
New claims raised at hearing
Section 367A of the Act provides for circumstances in which the Tribunal is required to draw an inference unfavourable to the credibility of claims or evidence that were not first raised or presented before the primary decision was made if it is satisfied that an applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made.
Given the applicants’ evidence with respect to the claims contained in their protection visa application and how that application was prepared, I accept the application form does not provide an accurate account of the applicants’ claims. I also accept that as the applicants were not interviewed by the Department, they were not aware that incorrect claims had been provided on their behalf at an earlier stage, and they did not have an earlier opportunity to correct those claims. In these circumstances, I draw no adverse inference about the credibility of the new claims raised at hearing merely because they were not presented to the delegate.
Delay in applying for protection
At the hearing, I discussed with the applicants their delay in applying for protection. The applicants gave evidence that they did not know anything about protection visas before coming to Australia or after arriving and it was only after they became aware of others applying for protection to get work rights that they decided to apply. I find the reason for doing so was so that they could regularise their status and obtain work rights.
I accept the applicants have had limited education and they were unfamiliar with Australia’s migration system. However, I do not accept there is a satisfactory explanation for such a lengthy delay in applying for protection (of 3 and a half years). However, the delay in lodging a protection visa application is not determinative in relation to their claims which are considered further below.
Does the applicant satisfy the refugee criterion for protection?
Claims in the Protection Visa application
As mentioned above, the applicants confirmed in the hearing that they do not rely on the claims contained in the protection visa application. Consequently, I have not considered the claims in the protection visa application any further.
Economic concerns
The applicants both claimed at the hearing that they came to Australia to work, they can earn better wages in Australia, and they are concerned about being able to continue to support their families if they were to return to Vietnam.
The country information suggests the economy of Vietnam has been improving for an extended period of time and the poverty rate is down significantly.[1] The country information also indicates that since 2010, Vietnam’s unemployment rate has consistently ranged between 2 and 3% and the IMF has projected unemployment of 2% in 2025. The agriculture sector employs 36.2% of the labour force. Further, Vietnam has high rates of informal employment. According to the General Statistics Office, Vietnam’s official statistics agency, 33.6 million people – or 68.5% of the working population – were employed informally in 2021 (this included 6 million informal workers in the formal economy). The majority of informal workers engage in agriculture, forestry, fishery, construction and family businesses. Most lack social insurance benefits and labour law protections, face greater job insecurity and lower pay, and are more likely to work in hazardous conditions.[2]
[1] DFAT Country Information Report Vietnam February 2025, [2.12]-[2.17]
[2] Ibid, [2.22]
At the time of publication of the DFAT Country Information Report Vietnam in February 2025, the age of retirement was 61 years for men and 56 years and four months for women. Under the revised Labour Code (2019), the retirement age has increased annually by three months for men (until it reaches 62 in 2028) and by four months for women (until it reaches 60 in 2035).[3]
[3] Ibid, [2.23]
I accept that the applicants’ earning capacity in Vietnam is not as high as it is in Australia. However, the applicants are both of working age and have various skills and work experience both in Vietnam and Australia, mainly in the agriculture sector but also in other sectors. I accept that the applicants may find it difficult to obtain employment in certain fields due to their age and limited education, and there may be fewer employment opportunities in Hue than in other areas. However, the Tribunal does not accept that this will prevent the applicants from finding any employment in Vietnam, particularly within the informal sector. They also have a large family in Vietnam, who appear to be in a position to offer support such as accommodation at least initially on return. I therefore find that the applicants will have access to accommodation, and basic services, and they will be able to find employment in the reasonably foreseeable future in Vietnam. I am therefore satisfied there is no real chance the applicants would suffer significant economic hardship that threatens their capacity to subsist, and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exhaustive examples of serious harm mentioned at s 5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, on return to Vietnam.
For the above reasons, the applicant does not meet the criteria in s 36(2)(a) of the Act.
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).
I have found the applicants do not face a real chance of serious harm in Vietnam. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[4] For the same reasons given above, I find there is not a real risk the applicants will suffer significant harm.
[4] MIAC v SZQRB (2013) 210 FCR 505
For completeness, I have considered whether economic harm that the applicants fear would amount to significant harm in the complementary protection criterion under s 36(2)(aa), and had regard to the definition of ‘significant harm’ as defined in s 36(2A). Given the applicants’ evidence, I find that the risk to them on account of their circumstances in Vietnam, would not amount to significant harm for the purposes of s 36(2A) of the Act. In this regard, the applicants have not advanced claims, nor does the country information suggest, that the economic harm in Vietnam described by them would be the result of an intentional act or omission by a third party such that it could amount to arbitrary deprivation of life; cruel or inhuman treatment or punishment; or degrading treatment or punishment; torture; or the death penalty.
For these reasons, the Tribunal does not accept there to be substantial grounds for believing that there is a real risk the applicants will be subjected to significant harm, as that term is defined in s 36(2A), as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of hearing: 8 July 2025
Representative of the applicants: N/A
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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