2117794 (Refugee) - [2025] ARTA 1768

2117794 (Refugee) [2025] ARTA 1768 (7 July 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Tessa Crawford
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2117794
Tribunal:General Member C Graydon
Date:7 July 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 07 July 2025 at 2:36pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – elderly, destitute Vietnamese women unable to work and without any family support – financial debts – threats of violence from money lenders – long-term neglect, and psychological and economic abuse amounting to family violence – divorced and remarried – fears harm from drunkard first husband – second husband left her – believes she lodged a spouse visa application – exercise of Ministerial powers refused – expired household registration – estranged from children – false claims made on her behalf – draw no adverse credibility inferences – fear of lack of means of support and care due to destitution, her gender, age, health, and long absence – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
CWW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1435
Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423
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 23 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 18 April 2020. The delegate refused to grant the visa on the basis that The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
On 29 November 2021 the applicant applied for review of the delegate’s decision. On 14 October 2024 the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 15 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was not represented up until after the hearing but after the applicant appointed legal representation, post-hearing evidence and submissions were provided to the Tribunal prior to this decision.
BACKGROUND
The applicant claimed to be [an age]-year-old woman from Bac Lieu, Vietnam. She applied for a protection visa on the basis that she feared persecution in Vietnam due to her political opinions and religious beliefs, as a Catholic.
The evidence she provided in support of her case is set out below.
Evidence before the Department
Information provided in the applicant’s protection visa application
In her protection visa application the applicant claimed to be born in [year] in Bac Lieu, Vietnam. She claimed that as a student she started to oppose the communist regime in Vietnam. She claimed she was denied basic human rights in Vietnam to freedom of speech to express anti-government positions. She claimed to have been hit on many occasions by school management due to her political opinions but she continued to fight against local authorities who threatened her parents and her family’s business. She also claimed that due to being Catholic, she was subject to harassment and denied freedom of religion.
She claimed to have left Vietnam for travel and to study more about human rights, freedom of speech and democracy in Australia. She claimed to have expressed anti-government views frequently on [Social media 1] while in Australia and feared punishment for this of up to five years jail in Vietnam due to government monitoring of social media by Vietnamese people abroad. She also feared lacking financial support and accommodation in Vietnam.
She also submitted a copy of her Vietnamese passport issued in Canberra with an expiry date of [2020] in support of her application.
The applicant was not offered an interview by the Department.
The delegate refused the applicant’s application on the basis that her political profile was not of a level where she would likely come to the adverse attention of Vietnamese authorities. In forming this view, the delegate referred to the applicant’s ability to obtain a passport and leave Vietnam without apparent difficulty as evidence that she was not of interest to the authorities at that time. The delegate also concluded there was low risk her claimed social media posts would have come to the attention of Vietnamese authorities and therefore would not have any future adverse effect upon her. The delegate also did not accept that Vietnamese Catholics are subject to systemic treatment amounting to serious harm and did not address the applicant’s claim to face a lack of financial support and housing following her return to Vietnam.
Evidence before the Tribunal
The applicant lodged her application for review of the delegate’s decision on 29 November 2021. On 27 February 2025, the Tribunal advised the applicant that her case had been constituted to a Tribunal Member and requested further information in anticipation of the case soon being listed for hearing.
On 29 April 2025 the applicant was invited to attend a hearing before the Tribunal on 15 May 2025. The applicant did not respond to the Tribunal’s hearing invitation, however she appeared at the time and date of her scheduled hearing.
The applicant appeared before the Tribunal on 15 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Summary of the applicant’s oral evidence at the Tribunal hearing on 15 May 2025
The applicant is [age] years old. She married in [year] when she was [age] years old. However due to family violence and debt problems she divorced from her husband more than 20 years ago, after she came to Australia.
She has [children]. She believes that [her children] continue to live in Vietnam and one lives in Australia. Since she left Vietnam she has had limited contact with her children. As far as she knows they are all married and all have [children] of their own. She believes her son may live in Ca Mau Province but he has moved around a lot since her divorce and she has not had contact with him for a long time. She does not have regular contact with any of her children. She cannot remember their names and it has been a long time since she spoke to any of them. She used to live in the Province of Bac Lieu but she does not know if any of her children still live there as they have moved everywhere and she is not sure where they live now.
All of her children were upset that she divorced their father and then after that they just drifted apart. Her daughter in Australia was also upset with her for divorcing and re-partnering and she has not spoken to her in a long time. She last heard that her daughter lives in [Suburb 1] in Melbourne.
She currently lives with friends in a share house. They assist her with accommodation and food, and in return she cleans their house.
I asked the applicant if she has a new partner or husband. She said not anymore. After she came to Australia she married again and lived with her second husband for around 11 years. She had thought they would stay together, however he decided to go back to Vietnam and married someone else. Since then she has not had any other partner.
I asked the applicant why her children had been so upset about her divorce, given that he had been neglectful to them too, and given that the divorce happened a long time ago. She said she does not really understand why. She thought they became less angry over time but by then they had already lost contact.
I asked the applicant why she left Vietnam. She explained that at that time her daughter was already living in Australia and that in January 1995 she came to Australia on a tourist visa to visit her. After she divorced from her first husband, he threatened that if she returned to Vietnam he would kill her.
I asked whether her ex-husband had been violent towards her in their marriage. She responded that he was not physically violent towards her but he kept drinking all the time and he did not work or support the family. They were very poor and they argued a lot about him using their limited money to buy alcohol. She said that her husband abandoned and neglected the children and her. She explained that she had previously run a small shop in Vietnam but eventually closed it as it was not making any money. She closed the shop a long time before she came to Australia but she cannot recall when.
She explained that she is getting old and that her memory has become very poor, so much so that she cannot remember her children’s names. She said that her memory had deteriorated a lot ever since she contracted the COVID-19 virus. At that time she was extremely ill and had to be hospitalised and from that time she has been unable to remember things.
I asked whether at the time she left Vietnam if she had just wanted to visit or daughter or whether she planned to stay longer due to experiencing problems in Vietnam. She said that she had a lot of problems caused by debts that her and her ex-husband had taken from the bank for them to establish their shop and they had been unable to make the repayments. She said she still owes the bank this money now. She is not aware of whether there is any kind of legal process against her or her ex-husband seeking repayment of the debt.
She explained that when she married her husband he worked [in two roles] and soon after they married, he borrowed the money and they opened a small shop. She added that they had also borrowed money from informal lenders and that she still owed them money too. She recalls they took around three or four loans from different informal lenders amounting to around VND[amount]. As far as she recalls they borrowed around VND[amount] from the bank. When the shop was still running, they paid all the profits to the bank and other lenders, but then the business went downhill and they could not manage repayments. She explained that they made limited profits which also had to cover new stock for the shop and the basic living costs of their large family. There was not enough money for the business to continue operating.
I asked if the informal lenders had ever taken any kind of action against her. She said that while she was in Vietnam they would often visit her house and make verbal threats against her that they would assault her if she did not repay the money. Sometimes they came to the house and other times they met her on the street and demanded she repay the money. These visits happened at different times but usually at intervals of around every two or three months. She said that these visits continued up until the time that she left Vietnam in 1997.
Aside from these visits and demands for repayment threatening her with violence, they did not take other action against her while she was in Vietnam. To date she is not aware of either the bank or the informal lenders taking legal action for repayment of the debts. I asked her why she thought the informal lenders never acted on their threats to harm her, even though she had owed the money and not repaid it for a long time. She said she is not sure why but that if they did harm her badly, then they would not be able to get their money. She said that after she left Vietnam, the debt collectors still came to her house asking for the money from her husband. But they saw that he was a drunkard and could not do anything, and so they stopped bothering with him. They still consider her to be the main borrower responsible for repaying the loans.
I asked if this was the main reason why she came to Australia when she did. She responded that it was part of the reason as it was a dangerous situation she faced as she was unable to repay the loans. She believes she still owes VND[amount] altogether, as she was only ever able to make repayments for the interest owed and not for the principal of any of the loans.
I asked if her ex-husband had supported her decision to come to Australia for the visit. She said that he had agreed. She was able to afford the ticket as her daughter in Australia bought the ticket for her. At the time she left Vietnam, her youngest child was around [age] years old. The older children looked after the younger ones, as their father was incapable of doing anything. In the end, her children all married and made their own lives.
Around two years after she arrived in Australia, she decided to get divorced. She met someone else in Australia and wanted to pursue that relationship. Her ex-husband initially did not support getting a divorce but after he learned she was living with someone else, he agreed. She applied for the divorce and said that once her ex-husband had agreed, then it was not difficult to arrange for the divorce. She does not have a copy of the divorce document.
She married her new partner and she believes that she applied for a spouse visa and she submitted her divorce document as part of that process. She was pregnant with her new husband but then she miscarried. After living together for ten or eleven years, her second husband left her. The spouse visa did not go ahead.
I asked her what she feared would happen to her if she returned to Vietnam now. She said that all of her children reject her and she has no relationship with any of them as they all judge her for divorcing their father. She would have nowhere to live and no family to live with. She has been away from Vietnam for so long that she has lost her housing registration and she would be unable to find anywhere to live.
She said she was worried the debtors would come after her again. I asked her why she was worried about this given that it is now around 28 years since she left Vietnam. She said that she has been away from Vietnam for a long time when they could not take any action against her, but if they saw her back in Vietnam, they would take some action against her, either through the legal system or by using violence.
I explained that if the bank or other lenders decided to take legal action against her for recovery of the debts, then that was their right and not a reason for me to find that she faced persecution in Vietnam.
I asked the applicant about her first ex-husband’s situation now. She said she is not sure where he lives but thinks he is still alive and likely still drinking a lot. She heard that from her daughter in Australia a few years ago. At that time, her daughter still stayed in touch with her siblings and seemed to still be in touch with her father also. She does not know the situation now as she has had no contact with her daughter for a long time.
I asked her about the threats from her ex-husband and how they were communicated to her. She responded that her ex-husband was talking to their daughter and said to her ‘tell your mother that if she returns to Vietnam I will kill her.’ He said this around the time that she started to live with her new partner. I asked if there had been continuing threats from him since that time. She responded that her daughter told her previously that when she spoke to her father he continued to talk about the applicant in this way, saying that he planned to hurt her if she returned to Vietnam. I asked her again if she had been in recent contact with her daughter. She said she had not spoken to her but that she had said things to other friends in Australia about her ex-husband continuing to hold a grudge against her, which had been passed onto her by those friends. She added that after she remarried, her ex-husband could no longer threaten her directly so he did this through her daughter.
I asked her why her ex-husband would continue to threaten her given that he had agreed to the divorce. She said she did not know his motive but that he was drinking all the time and was an unreliable person. I asked whether she thought she would receive help from the police in the event that he did threaten her upon returning to Vietnam. She said she did not know if the police could help her and that she was very frightened to go back to see her ex-husband.
I asked her if she thought she would receive help from police if the money lenders continued to threaten her upon returning to Vietnam. She said that if she returned to Vietnam without any money to repay the money lenders, then they definitely would take some action against her. She worries that by the time she sought help from police, the moneylenders would already have harmed her. I put to her DFAT country information indicating that the police do investigate and prosecute unlawful money lenders, including when they threaten or harm people. She responded that the information may be one thing but that the reality on the ground is very different from that and she knows the police will not help her.
I asked her about her fear of having no housing in Vietnam. She said it had been a long time since she had lived in Vietnam and that she now has no home or household registration. She explained that no one had lived in the family home for a long time and that it had collapsed and become uninhabitable. She added that she thinks her ex-husband has already sold the land and so she has no land and no house to return to in Vietnam,
I asked if she could stay with any of her children. She said that they had been upset by her leaving Vietnam, divorcing their father and marrying someone else. She said they felt she had abandoned them and she had been unable to send money back to them, and so they had to struggle financially themselves. She said they likely think she could have sent them money as she was in a rich country for a long time and they do not understand how difficult it can be in Australia. Her children stopped having any contact with her over time, as they had young families of their own. They drifted apart. It has been so long now without any contact with them, they no longer have any concern or obligation to her now. They have their own families and lives and she no longer has any connection with any of them, nor their contact details.

I asked if she had been working in Australia over the years. She said she had been in Australia for around 28 years and that since her second husband left her, she became old and so she could not get any job at all to support herself. She said she felt lucky she had a friend who at least helped her with accommodation and food in exchange for housework. She has not been able to save any money in Australia.
I asked her if she thought she would be eligible for a pension if she returned to Vietnam. I presented to her country information indicating that under the new social insurance laws she would likely be eligible for around VND500,000 per month. She said that her household registration expired five years after she left Vietnam and that she now has no paperwork and that it would be impossible for her to re-apply for household registration. I said there must be a way for people who had been away from Vietnam for a long time to re-register. She said she did not know and that she could not organise all these things on her own in Vietnam.
I asked her if she is in touch with any of her siblings in Vietnam. She said she has a sister who she thinks still lives in Bac Lieu. I asked if she could live with her and her family. She said she has lots of debts and does not want to get other people in the family involved or put them at any risk. As she would be returning to Vietnam without any money, no part of her family would take her in. She said that she is depressed and getting old. She cannot live in Vietnam on her own and asked the Tribunal to consider her humanitarian situation. I explained the limits of my role regarding humanitarian considerations and asked whether she would like the Tribunal to contact legal services to see if they may be able to assist her with her current application before the Tribunal. She said that she would. The Tribunal later provided a referral for the applicant to government-funded legal providers and Refugee Legal agreed to take on her case, and then provided medical evidence and legal submissions in support of the applicant’s case, as discussed below.
I asked whether she had prepared the protection visa application form herself. She said that a friend had helped her as she did not understand English. She thinks he may have read it back to her but she cannot really remember as it was a long time ago and now her memory is bad. I read out the claims included in her application form, regarding her being a student and involved in anti-Government statements and that she feared harm due to her political opinions and activities, and due to her Catholic faith. She said that all this information was not true and that what she had told the Tribunal today was all true. She explained the context of her protection visa application. She said that after her second husband left her and she did not get a spouse visa, she did not know what to do and had been living in Australia without a visa. However then she got sick with COVID-19 and needed medical care and so she needed a bridging visa. She had applied at that time so she could receive medical treatment and she is not really clear about what was on the form at all. She cannot recall all the details of when she applied for the spouse visa or when it was finally refused, but she thinks the whole process took around three years.
I asked the applicant if she has a religion. She said she was a Buddhist and that the information on her application saying she is Catholic is incorrect and that she has never been Catholic although sometimes she had attended a Catholic Church with her friend in Australia who was Catholic. I asked her if she would be a practising Catholic if she returned to Vietnam. She said she would not be. I asked her if she had ever been involved in any political activities, in Vietnam or since leaving Vietnam. She said she had never attended protests or made statements against the government and that no one in her family has had problems due to any political activities or positions they have taken against the government.
Post hearing submissions
As noted above, following the hearing the Tribunal made a referral at the request of the applicant for assistance from a free legal provider. On 26 May 2025 the applicant appointed Refugee Legal to represent her. The Tribunal provided an administrative release of the file to Refugee Legal and granted them until 27 June 2025 to provide any further evidence or submissions.
On 27 June 2025 the applicant’s lawyer submitted a medical report from the applicant’s general practitioner, Dr [A], dated 1 June 2025. The report includes the following information:
·Dr [A] has treated the applicant since February 2021 for both physical illnesses and more recently, mental health challenges also.
·The applicant has been diagnosed with hypertension and hypercholesterolemia and has received regular treatment and reviews of these conditions. Management of these issues remains ‘ongoing and forms a core part of her long-term health plan.’
·In January 2022 the applicant contracted COVID-19. ‘While the acute phase of the illness was managed successfully, she experienced ongoing symptoms. These symptoms include persistent fatigue, headaches and brain fog.’
·In more recent consultations the applicant ‘has presented with increasing mental health concerns. These include recurrent headaches, forgetfulness, short-term memory lapses, and ongoing insomnia. She reports frequent episodes of sadness, heightened stress and anxiety. These symptoms have been compounded by psychosocial stressors, particularly regarding her living situation and family dynamics.’
·The applicant has ‘shared she has experienced tension with her daughter. This emotional strain is linked to past family events, including the breakdown of a relationship with her former partner and her daughter’s disapproval of her decision to move on. These unresolved interpersonal difficulties have left her feeling isolated and emotionally vulnerable. She has also reported an erratic appetite, which fluctuates with her mood, further reflecting the psychological toll of these ongoing challenges have taken on her wellbeing. Take together these physical and mental health concerns have led to significant functional impairment., The patient has difficulty maintaining daily routines and reports frequent lapses in memory and concentration. She continues to require psychological support, medical reviews and continuity of care.’
On 27^th June 2025 the applicant’s lawyer also submitted a legal submission in support of the applicant’s case. The submission:
·Outlines the applicant’s circumstances, largely consistent with the evidence that she provided to the Tribunal as set out above.
·Argues that the applicant is owed protection obligations as a refugee as she faces ‘serious harm’ as defined by s 5J(5) of the Act, more particularly ‘ongoing cumulative serious discrimination that causes her significant economic hardship, which threatens her capacity to subsist, including by denying her access to basic services, and denies her to the capacity to earn a livelihood of any kind.
·Argues she also faces direct and indirect serious harm including threats and threats to her life or liberty, death and significant physical harassment and ill-treatment. She also faces direct targeted serious harm ‘for non-Convention reasons, but where the Vietnamese authorities may discriminatorily withhold protection.’
·Argues she faces this harm due to her membership of particular social groups described as:
·women in Vietnam;
·women in Vietnam who have been subjected to family violence;
·single / separated / divorced women in Vietnam;
·women in Vietnam who have defied cultural norms;
·women in Vietnam without familial connections;
·elderly women in Vietnam;
·women in Vietnam with significant health problems; and
·victims of loan sharks.
· The submission also argued that the applicant is at risk from the Vietnamese State and authorities, her first husband, her children and loan sharks.
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 there is a real chance that the applicant will suffer serious harm if returned to Vietnam for reasons of her race, religion, nationality, membership of a particular social group or political opinion. Alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be set aside.
Applicant’s country of reference
The applicant has consistently claimed to be from Vietnam and has submitted a passport issued by the Government of Vietnam. There are no concerns before me regarding the applicant’s identity or nationality. I am satisfied that the applicant is a citizen of Vietnam. There is no information before the Tribunal that the applicant would have a right to enter and reside in any other country except for Vietnam. I find that the applicant’s ‘receiving country’ is Vietnam and I have assessed her claims against that country.
Credibility of the applicant’s claims
The applicant has been continuously in Australia for more than 28 years. She arrived in Australia [in] January 1997 and applied for a protection visa on 18 April 2020, some 23 years after her arrival. I note that she has a complicated visa history in Australia, and that efforts to secure her status based on her second marriage were not successful. She has had several periods of her being present in Australia without any visa, including for lengthy periods, notably between October 2010 to April 2020.
In considering the protracted delay in the applicant applying for protection, I note that such delay is ‘a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of [an] applicant’s alleged fear of persecution.’[1] However, I also note that the mere fact of a delay in applying for protection cannot, of itself, support a finding that the applicant’s claims lack credibility or that the applicant does not hold a well-founded fear of persecution. Rather, a delay in applying for a protection visa may only undermine an applicant’s credibility, or the genuineness of their fears, in an ‘appropriate case’[2] for example, where the delay is unexplained[3] or where the applicant fails ‘to provide the Tribunal with an explanation for the delay in making the application for the protection visa, which was reasonable, rational, and consistent with the existence of a fear of persecution.’[4]
[1] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301, [11] (Heerey J).
[2] CWW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1435, [52] (Markovic J).
[3] SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68, [27] (Dowsett, Bennet and Edmonds JJ).
[4]SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, [69] (Moore J).
The applicant explained that following refusal of her spouse visa application, she had not been aware of any visa she could apply for until she was sick during the COVID-19 pandemic, when a friend suggested to her that if she applied for a protection visa, she would be granted a bridging visa, which would enable her access to Medicare. As per my findings further below, I accept that the applicant has been living in a highly isolated and vulnerable situation for many years in Australia. Despite the length of time she has lived in Australia, she is elderly and continues to have limited English language knowledge. Despite having a daughter living in Australia, I accept that the applicant does not have a good relationship with her and has not had contact with her for some years. I also note that she has not been working or mixing in environments where other asylum seekers may also be, which may have exposed her to information from others about the existence of protection visas and the process to apply. During the hearing, when I asked her if she would like the Tribunal to refer her to a free legal provider, she was clearly unaware that such services were available. That she lived for many years without any visa, no doubt suffering without access to Medicare, despite her health issues, also suggests she was unaware of any steps she could take to regularise her status and gain access to healthcare.
All of these factors lead me to believe that in her particular circumstances, it is plausible that she had no knowledge of protection visas until the time came when her health needs became critical and her friend suggested to her that she could apply for a protection visa. I draw no adverse inference regarding the applicant’s credibility, due to the long delay in her applying for protection, for which, in her circumstances, there is a reasonable explanation.
I note that s 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of claims or evidence not raised before the primary decision-maker unless the applicant has a reasonable explanation for not having done so.
I note that the applicant’s protection visa application form states that no assistance was provided in completing the form and that no interpreter was used to prepare the form. Yet the applicant’s evidence was that someone did assist her. In assessing this discord, I note the applicant’s limited verbal English language proficiency at the time of her hearing and conclude that she likely had less English proficiency back in April in 2020, when her protection visa application was prepared. I conclude that she would have been unable to complete the form without assistance at that time due to language barriers. I therefore accept the applicant’s evidence that someone did assist her to complete the form but did not declare their assistance. I accept that this may possibly be due to that person not being qualified to provide such assistance and/or not being bona fide in the assistance they provided. It is therefore plausible that such a person may also invent claims on behalf of the applicant, which she would have been unable to later detect due to language barriers, even had she been given a copy of the completed application.
I note that had the Department extended an opportunity for the applicant to explain her claims at an interview with the assistance of an interpreter, the false claims made on her behalf and her true claims would very likely have been identified and addressed by the applicant at a much earlier point of the process. I accept that the applicant, who faces language barriers, and until after her Tribunal hearing, was unrepresented, was unable to alert the Department or the Tribunal to the false claims made on her behalf or to provide her actual claims until she had the opportunity to be made aware of and address these issues, with the assistance of an interpreter. I therefore accept the reasonableness of the applicant’s explanation for her providing new claims at the review stage of the process, meaning that s367A does not apply. I draw no adverse credibility inferences from the fact that the applicant’s protection claims have changed significantly throughout the course of her application and review process.
Most importantly, I am willing to accept the applicant’s explanations for her late application, her initial false claims and her new claims at the review stage, because she presented to the Tribunal as a credible witness. In assessing the applicant’s evidence, I have been particularly mindful of my obligation to assess the evidence in a holistic and beneficial way and without unduly focusing on small or otherwise immaterial inconsistencies, especially given the evidence regarding the applicant’s memory issues and her overall vulnerability, including due to her age, anxiety, social isolation and language barriers she has faced in the process. I am also mindful of the need to make reasonable allowances for the fact that many of the events relating to the applicant’s case occurred a long time ago, and how the passage of time may impact on the applicant’s already compromised memory. There are also inherent risks of misunderstanding arising when evidence is given via interpreters, notwithstanding their professionalism.
I have also given regard to the longstanding principle governing refugee status determination that the special situation of asylum seekers often may mean they should not be required to produce all necessary material to corroborate their claims.[5] This is highly relevant in this case, noting there is limited evidence, other than the applicant’s oral evidence and a medical report, corroborating key claims made regarding the various risks she allegedly faces. Additionally, I have had regard to relevant judicial authority on the issue of findings on credibility in this context,[6] and note that many of these principles of the allowances which should be provided, are reflected in the former Administrative Appeal Tribunal’s Migration and Refugee Division’s Guidelines on the Assessment of Credibility.[7]
[5] UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, at [10]. See also: UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, at pp 43-44.
[6] Including: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [192] and Kirby J at [211]; Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 per Hely J (these comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Kirby J at [7]; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 per Foster J at [26].
[7] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, July 2015.

Appraising the applicant’s evidence taking these factors into consideration and on its own merit, the applicant provided a credible level of detail in her accounts of her background and experiences, including regarding her protection claims. Her evidence was given in an open and honest manner to the Tribunal and was largely internally consistent, and also consistent between the evidence she gave at the hearing and that later submitted by her lawyers. Her evidence was also plausible when read against relevant country information.
I accept the following claims made by the applicant:
·The applicant has lived in Australia for more than 28 years.
·The applicant comes from a poor farming background. She married at [age] years old. Her husband was an alcoholic who throughout their married life did not work or contribute to supporting her and their [children]. He used the limited family income to support his alcoholism. While he did not use physical violence against her, she and the children suffered long term neglect, psychological and economic abuse. I accept that the applicant has experienced long-term family violence by her first ex-husband.
·Early in their marriage, the applicant and her husband took out loans to establish a small shop, which went bankrupt. They borrowed VND[amount] from a bank and VND[amount] from private lenders. Until she left Vietnam in 1997, the applicant had continued to pay interest on these loans however has not made any payments since. Consequently, at the current time, she continues to owe a combined principal of VND[amount] and interest charged by the bank and the private lenders over the past 28 years. The applicant is not aware of any legal proceeding against her for repayment of the loans.
·Over a long period of time in Vietnam, the private lenders pressured her to repay the loans by visiting her house or locating her elsewhere, every two or three months. They threatened to physically harm her if she did not make the repayments expected of her. She changed her daily life patterns to try to avoid these encounters and visits and she was always afraid when the debt collectors found her.
·After she left Vietnam, the debt collectors stopped pursuing her husband for the debts as he was an alcoholic and they knew they could not get money from him. Even though she has been away from Vietnam for a long time, she fears debt collectors would continue to pursue her if she returned, especially as she has been in Australia for a long time and they will assume she has a lot of money, or access to money. She fears they will continue to threaten her as they have in the past or they may act upon their threats and physically harm her.
·The applicant divorced her first husband a couple of years after she arrived in Australia. She remarried and lived with her second husband for ten or eleven years. She believes she lodged an application for a spouse visa however there is no evidence such an application was made, aside from a request to the Minister for exercise of Ministerial powers, which was refused. The applicant’s second husband left her and returned to Vietnam where he married someone else.
·The applicant is estranged from her [children], including her daughter living in Australia. Her relationship with all of her children in Vietnam broke down many years ago due to them viewing her to be an irresponsible mother for leaving them in Vietnam in the care of their drunkard, neglectful father; for not sending them economic support from Australia; and for deciding to divorce their father and to re-marry. She has had no contact with any of her children in Vietnam for a long period. She does not recall their names or the names of their spouses or children. She does not know where they live and she has no current contact information for any of them.
·Her daughter in Australia has largely taken the same view of her as her other children in Vietnam and has not reconciled with the applicant. While the applicant has had some contact with her daughter in the past, she has not had any recent contact with her, for years. As far as she knows, her daughter lives in [Suburb 1] but she is not sure of this, nor of her current contact details. She believes her daughter may still remain in touch with her other children and also with her first ex-husband.
·When her first ex-husband became aware that the applicant had re-partnered he told her daughter that if she returned to Vietnam he would kill her. He later agreed to the divorce. The applicant has heard via other friends who are in contact with her daughter, that her first ex-husband continues to threaten her and hold a grudge against her.
·The applicant fears that in Vietnam she will lack any means of support, housing, health care or long-term care as she ages. She does not have any income or savings in Australia or any resources to take back with her to Vietnam. Her husband has sold the land their house was previously built on. She fears she will be unable to secure any work due to her age, health conditions and lack of employment background. She lacks household registration and fears she will not be able to navigate trying to reinstate her civil documentation, which is necessary for her to access basic state services including health care, housing, pension and other support.
·The applicant does not fear return to Vietnam due to her political opinions or any related political activities, nor due to any issue associated with his religious beliefs.
Does the applicant satisfy the refugee criterion for protection?
Does the applicant face a real chance of serious harm?
The applicant has raised a range of basis upon which she fears harm in Vietnam. While each of these elements requires individual assessment, the overall assessment of whether the applicant faces a ‘real chance’ of treatment amounting to ‘serious harm’ must consider the cumulative effect of these elements to determine how these risks and harms may interact and whether their overall sum may reach a threshold of a real chance of serious harm.
Applicant’s fear of lack of means of support and care due to destitution, her gender, age, health, and long absence from Vietnam
It is argued by the applicant’s representative that the applicant faces a range of cumulative risks of serious harm relating to her lack of capacity to re-establish and support herself in Vietnam to a subsistence level: problems which at their core, are intrinsically linked to her gender and age. Under s 5J(5)(d)(e) and (f) of the Act, ‘serious harm’ is limited to only the most severe forms of economic hardship such that they ‘threaten the person’s capacity to subsist’ including by denying them access to basic services or the capacity to earn a livelihood of any kind.
In assessing whether the applicant’s circumstances meet this high threshold, I accept that women in Vietnam face culturally entrenched discrimination, most especially in the crucial spheres of family life, personal security and economic aspects of life. While DFAT assess that Vietnamese women face a “low risk of official or societal discrimination on the basis of their gender”, I accept that when all relevant aspects of the applicant’s identity are considered, the cumulative effect could compound the level of discrimination she faces, where it may amount to serious harm. Breaking this down, the applicant fears she will be destitute and have no means of support or care if she returns to Vietnam. The main sources of potential support or care for the applicant would be from her family, self-sufficient support or from the state. Each is examined in turn.
Lack of family support
In relation to her family, I accept that the applicant is currently estranged from all of her children in Vietnam who have ceased contact with her long ago due to their perception she had abandoned them and that she wrongly divorced their father and re-partnered, contrary to dominant gender norms regarding the behaviour of married women and mothers in Vietnam. I accept that this family estrangement has been the case for a lengthy period of time and is unlikely to change in the foreseeable future.
I note that the applicant’s tragic experience of rejection by her children due to the difficult life decisions she has made, is consistent with research indicating that some family violence perpetrators:
‘use children in various ways to harm, harass, threaten and control their partners, especially post-separation when potential avenues of control are reduced.21 They may also turn children against their mothers by blaming them for negative events.22 Research has also shown that children can mimic violent behaviours and blame the victim.23 Where the bond between a child’s relationship with their (non-violent) caregiver is broken or damaged, the child loses “trust in their victim parent’s care for them and that results in the children taking out their frustration on the victim rather than the perpetrator”. 24 [Emphasis added]
I also recognise how the patriarchal norms and gendered expectations of married women and mothers in Vietnamese society, including those imposed by their own children, may remain strong and rigid, especially in rural areas, and that these have likely informed the lasting breakdown in relationships between the applicant and her children. DFAT assesses that despite Vietnam having a strong legal framework for gender equality:
In practice, women continue to face ongoing challenges relative to men, including because of entrenched social and gender norms about women and their role in society, which act as a barrier to full equality.[8] [Emphasis added]
And further:
…gender inequality persists, including because of traditional views about family, societal expectations that women should be responsible for unpaid domestic care work, and stereotypes on gender appropriate fields of study and occupation. Gender inequality is most pronounced in rural areas and among ethnic minorities, where women’s social indicators, including for education, health, income and domestic violence, lag behind those of the Kinh.[9] [Emphasis added]
[8] DFAT Country Information Report Vietnam, 19 February 2025, [3.112].
[9] Ibid [3.115].
I accept the applicant’s evidence that especially as she had not been able to send any financial support from Australia for her children previously, and as she would be returning to Vietnam without any financial support to offer, the filial bonds between her and her children have been broken. I accept that none of her [children] in Vietnam feel any responsibility or obligation to provide her with a home or support, including her son, who culturally has the primary obligation to care for aged parents, as confirmed in a 2021 study into gender roles and norms in Vietnamese culture:
Vietnamese Confucian ideals of ‘men superior, women inferior’ hold that being a male is valued more than being a female. Men are the backbone at home and in society and are associated with noble qualities and virtues such as ‘nhân’, ‘lễ’, ‘nghĩa’, ‘trí’, ‘tín’ (kindness, decorum, uprightness, wisdom, and trustworthiness). Meanwhile, women are seen from a functional perspective: they should have ‘công’, ‘dung’, ‘ngôn’, ‘hạnh’, which means they need to skilfully take care of housework, maintain a tasteful look, have manners, and practise loyalty. Men are perceived as being more intellectually and physically capable, while women’s life accomplishments are judged by their marriage. Men occupy public space while women’s ‘sphere’ remains the home. Even at home, the woman seldom has her voice heard: she is expected to obey her father, her husband, and then her son.
Having a son is perceived to be better, as the son has the mission of family linage – passing down the family name, known as the logic of ‘patrilineality’. The son will be the one who preserves the family heritage and takes care of the parents, while the daughter will be married away (to serve her in-laws), so sons often receive more investment (e.g. in education). In this sense, girl babies are born, but they somehow do not exist, as seen in this saying, ‘You have one child if it is a son, but you do not have any child even if you have ten daughters’ (Nhất nam viết hữu, thập nữ viết vô).[10] [Emphasis added]
I also note that the applicant has [daughters] and one son, with her son being the only child owing a primary cultural obligation to the applicant for her support, and that her [daughters’] primary filial obligations lie with caring for their parents-in-law. This further underlines the lack of support available to the applicant within Vietnamese cultural norms, despite her large number of children. While scholars have found major changes to arrangements for care of elderly relatives in other Asian societies, T.C. Hoang, a PhD scholar at the Australia National University found that:
In Vietnam, findings indicate that household structures have generally been maintained despite profound social and economic changes since the economic reform of 1986. In particular, the majority of the elderly live with at least one child and most of the rest have adult children living next door or nearby. [11]
[10] Ibid.
[11] Hoang, T.C. ‘Modes of Care for the Elderly in Vietnam: Adaptation to Change’ Australia National University, PhD Thesis, 2016, p. 63-64.
I further note that the applicant also remains estranged from her daughter in Australia. The impacts of this upon the applicant’s mental health are documented in the medical report provided by her general practitioner, who says that this continuing interpersonal issue with her daughter have left her ‘feeling isolated and emotionally vulnerable’. I find that the applicant’s daughter in Australia would also not provide her mother with money or support or seek to influence her siblings to assist her, if she was in Vietnam and that there has been an irretrievable breakdown in the relationships between the applicant and all of her children.
I also accept that the applicant’s sister in Vietnam lives with her own extended family but that the applicant is also not in contact with her. The applicant considers that she would also be considered an unwelcome burden there due to her lacking capacity to make any financial contribution to her sister’s family and also due to the economic and reputational risks she may bring to her sister’s family associated with her debts and the risks of debt collectors coming. In this sense, the applicant’s status as a debtor is related to her social group claim in that it contributes to her exclusion from any form of family support. That she remains a debtor, in itself brings shame to the wider family, in addition to the risk of ongoing harassment by debt collectors coming to her new place of residence. These risks would only act as a further deterrent against other family members’ willingness to step in to provide her with a support safety net.
I also note that her status as a divorcee and the stigma she faces from her own children, may well also extend to other members of the applicant’s wider family, such as her sister’s family. While DFAT assess that community attitudes to divorce have shifted, mainly amongst young people and in urban areas,
‘family shame and family ostracism…can also have economic consequences. Suitable accommodation may be unaffordable or not exist, particularly in rural areas, because of the assumption that couples will buy property or live with parents and in-laws…’[12] Stigma does not necessarily translate into broader societal discrimination, and single women and divorcees, including single mothers, can still lead meaningful lives, particularly where they have support networks to call upon.[13] [Emphasis added]
Regarding this caveat identifying the importance of family support networks, I note that the applicant lacks such supports, and that her age and likely rural residence may also result in her divorcee status preventing her from receiving support from wider family. In sum, to all intents and purposes, I find that the applicant lacks any form of family support both in Australia and in Vietnam.
Extent of applicant’s capacity to be self-sufficient
[12] DFAT Country Information Report Vietnam, 19 February 2025, [3.126].
[13] Ibid, [3.128].
Turning to the applicant’s capacities to work and cover her own costs to meet her basic needs, I note the applicant is already [age] years old and suffers from serious memory issues to a point she cannot recall the names of her own children. Again, I give weight to the medical report from her regular medical practitioner of four years setting out her physical and mental health issues, and as per [47], concluding that:
Taken together, these physical and mental health concerns have led to significant functional impairment. The patient has difficulty maintaining daily routines and reports frequent lapses in memory and concentration. She continues to require psychological support, medical reviews and continuity of care.[14]
[14] Medical report, Dr [A], general practitioner, dated 1 June 2025.
I note that the applicant has previously worked as [an occupation], a shop owner and as [an occupation]. Aside from these roles, she has no other established work history. All of these roles require her to be physically fit and able to manage daily routines in addition to the role responsibilities. Based on her age and her medical assessment I find that if she is not already physically incapable of work, she will become so within the ‘foreseeable future’, thus supporting herself to ensure her means of subsistence, is not an option for her.
Adding to this, I also note that the applicant is already well beyond the national retirement age in Vietnam, which is incrementally increasing and for women is currently between 56-57 years.[15] While under the Labor Code (2021), it is illegal in Vietnam for employers to discriminate against someone because of their gender or their age,[16] there is evidence that in practice, gender and age discrimination in the workforce remain commonplace in Vietnam. As per UN Women:
Vietnamese women still earn lower salaries compared to men. Women face huge barriers as they climb up the career ladder. And they are discriminated against when entering the job market. The traditional expectation of domestic and family care responsibilities, as well as gender biases in recruitment practices and gender discrimination in the workplace are still holding back many female workers to compete in the job market on equal terms with their male counterparts.[17] [Emphasis added]
[15] Duane Morris,. ‘Vietnam's NEW Labor Code – 15 Notable Changes Coming Your Way Effective January 2021 - Employee Benefits & Compensation,’ 16 July 2020.
[16] Hoai, N.H., ‘Vietnam’s Workplace Anti-Discrimination Rules’, 3 February 2023.
[17] Hanoi Times, ‘Vietnam advances greatly in gender equality, but remains far from full equality: UN Women’, 21 September 2020.
Regarding age discrimination in employment, country information supports a view that older workers, considered to be over 40 years old, struggle to retain their jobs and face great difficulties securing work in the job market.[18] Given the combination of the applicant’s lack of capacity due to her health, as well as her age and due to gender and age discrimination in the workforce, I find that the applicant will not be able to work in order to meet her basic needs in Vietnam.
State support and access to basic services
[18] Pham, L., ‘Older workers face challenges in staying employed as companies favour younger candidates’, VnExpress International 11 April 2025.
Regarding the likelihood of receiving support from the state to ensure her subsistence and long-term care, the applicant claimed that she had lost her household registration due to her long absence from Vietnam and that she would be unable to re-establish it and therefore not able to access basic services. I accept that the applicant’s ability to secure her household registration and identity card is key to her being able to access government services upon which she would be wholly dependent. The World Bank reports that:
·lack of permanent household registration can be a barrier to accessing social health insurance and household health insurance.
·lack of permanent registration can limit access to some public services, such as the pension.
·the reports suggest that lack of permanent household registration can prevent access to the “poor list” – being the official list of people who are poor and able to access a range of social assistance measures; and
·lack of permanent registration has caused difficulties accessing local employment opportunities, social protection, education, and other public services.[19]
[19] World Bank Group, Vietnam’s Household Registration System (Report, June 2016).

The applicant’s representative also submitted that that the applicant’s household registration will likely have been revoked due to her extended time in Australia and also because her former home no longer exists. I note this is consistent with DFAT assessments of household registration revocation criteria.[20] Regarding her prospects for having her household registration reinstated, DFAT assesses that this is possible but only by first having a personal identification number; written certification of residence; and official approval of registration. However, the applicant will be unable to readily secure these documents because central to the applicant’s problems is that she has no home or residence to stay in, even on a temporary basis. I also note that permanent household registration is required for her to obtain an identity card,[21]which again is necessary for her to be able to access government services.
[20] DFAT Country Information Report Vietnam, 19 February 2025, [5.38].
[21] Ibid, [5.39].
There are therefore real questions regarding how the applicant, in her vulnerable situation, who would be facing homelessness and lack anyone to assist her, would be able to navigate and manage the predictable barrage of administrative processes needed for her to ultimately resolve these challenging ‘chicken and egg’ processes in order to reinstate her household registration and identity card, both of which are crucial to her having access to healthcare and other government support services. Bearing in mind that she would not have family or close friends to assist her, and assuming these processes would likely take some period to resolve, if she can manage them at all, there is also the question of how she would survive in the meantime.
Even were she to ultimately achieve a permanent household registration and identity card, I note that the applicant would be entirely dependent on state welfare, with no other family, friends, savings, assets or other resources to act as a safety net for her. DFAT information indicates that some state welfare is available, but that it is complex and cannot be assumed to be available due to gaps in coverage and fragmentation. Notably, DFAT concludes that welfare is insufficient to meet the basic needs of those who rely solely upon it, being the scenario most likely facing the applicant.
Welfare eligibility can be complex, and access should not be assumed. High rates of informal employment also significantly limit the number of people who can access social insurance and associated benefits. In-country sources said welfare programs were fragmented and not particularly well-targeted as of October 2023, although they acknowledged the Government of Vietnam’s efforts to make the welfare system better. Absent other means of support, such as family, sole reliance welfare would generally be insufficient to sustain a recipient.[22] [Emphasis added]
[22] DFAT Country Information Report Vietnam, 19 February 2025, [2.20].
I note that this assessment was made taking into account the proposed changes to the Law on Social Insurance at that time, which came into effect on 1 July 2025. These changes include increasing eligibility for pensions to those aged 75 years and over who are not entitled to the work-savings related social insurance pension and has now also been extended to those aged over 70 who are considered to be in ‘poor or near-poor’ [households]. Those eligible for this pension will receive VND500,000 (AUS29.13) per month, an amount that will be reviewed and adjusted every three years based on economic conditions and budget.[23] While this is clearly an improvement on the previous situation, as noted by DFAT, it would still be insufficient without other support, to ensure the applicant’s ability to subsist.
Lack of access to state-funded long-term care
[23] Asia Asset Management, ‘Vietnam ups retirement age, lowers pension eligibility requirement’, 10 February 2025.
Aside from a pension, the applicant’s age and health needs are such that she will need supported care in order to subsist. I note there is a dire shortage of state-funded aged care in Vietnam to meet the existing high demand, which due to Vietnam’s aging population, will increase in the foreseeable future.
Vietnam is an ageing society, with the proportion of older people in the population rising rapidly. While there are currently just over 10% of the population aged over-60 years, by 2030 it will have increased to 18% and to over 30% by 2050. Furthermore, the proportion of the oldest old – those aged over 80 years – will also grow and, by 2050, will comprise over 6% of the population.[24]
And:
…the demand for long-term care paid by the state is high. Despite efforts have been paid to the social security, the national policy relating to the older people in Vietnam has been criticized as inadequate and underdeveloped in serving the needs of older people.[25]
And:
There are a total of 393 social protection networks around Vietnam; 180 are run by non-state entities and 213 are publicly run. Thirteen of the social protection centres serve the elderly population. The centres are all financed by the government: the public units are financed directly, and the non-state units are financed indirectly via tariffs paid to the provider, based on what services are delivered. Expenditure is approximately $35 per person per month. A range of weaknesses have been highlighted in these public care centres; mostly due to limited financing, which translates into low-quality standards of accommodation, poor services, an absence of various key services (such as counselling) and difficulties recruiting staff due to low salaries. Furthermore, they are only available to a small segment of the elderly population, leaving many without access to LTC outside of their families... Quality in state-run institutional care centres in Vietnam is reputedly poor, which is mostly down to low levels of funding. [26] [Emphasis added]
[24] Kidd, S., Abu-el-Haj, T., Khondker, B., Watson, C., Ramkissoon, S., ‘Social assistance in Vietnam: a review and proposals for reform, UNDP, 2016, p 41.
[25] Hoang, T.C. ‘Modes of Care for the Elderly in Vietnam: Adaptation to Change’ Australia National University, PhD Thesis, 2016, p. 178.
[26] Pharoah D., (2021) COVID-19 and the Long-Term Care system in Vietnam. In: Comas-Herrera A., Marczak J., Byrd W., Lorenz-Dant K., (editors) LTCcovid International Living report on COVID-19 and Long-Term Care. LTCcovid, Care Policy and Evaluation Centre, London School of Economics and Political Science, last updated 3 January 2022. [1.03]. See also Kidd, S., Abu-el-Haj, T., Khondker, B., Watson, C., Ramkissoon, S., ‘Social assistance in Vietnam: a review and proposals for reform, UNDP, 2016.
Further evidence that the pension is insufficient to meet basic needs and highlighting the gendered risks of poverty and vulnerability amongst elderly women compared to men, is discussed below.
The proportion of older people living in or vulnerable to poverty increases along with age. The highest rates of poverty and vulnerability are among the over-80s, even though they are in receipt of a social pension. Furthermore, older women appear to experience higher exposure to poverty and vulnerability than older men.[27] [Emphasis added]
And:
The higher poverty rates among older women are of particular policy interest given that most older people are female. Overall, among those aged over 60 years, 39.7% of the population is male and 60.3% is female. The difference in the ratio of men to women increases as they become older. Therefore, old age poverty should be regarded as a gender issue, since it mainly affects women. Indeed, women face challenges in old age that may contribute to their higher exposure to poverty: for example, older women are around four times more likely than men to live alone, while they are also more likely to be living only with an unmarried child, which suggests that they may be taking on significant care responsibilities. The majority of older people do not have access to the security of an old age pension. Therefore, many have to continue in work, at least while they are physically capable…Older women are less likely to be in employment than men, although this may suggest that they are more involved in providing childcare for their grandchildren.[28] [Emphasis added]
[27] Kidd, S., Abu-el-Haj, T., Khondker, B., Watson, C., Ramkissoon, S., ‘Social assistance in Vietnam: a review and proposals for reform, UNDP, 2016, p 41.
[28] Ibid, p.42.
I make a further observation regarding the interaction between the applicant’s claims. I find that she does face a high risk of destitution, severe poverty and homelessness and that this will result in her having extremely limited choices about where she lives and where she can go. Her lack of mobility also increases her risk of being unable to take avoidance actions from debt collectors, should they continue to pursue and harass her, especially in light of my findings related to this claim discussed further below. Her fear of her husband, who she believes most likely continues to live in her home area of Bac Lieu, would also prevent her from returning to the location where she would have the best possible chance of reconnecting with people from her previous life in Vietnam, including with her sister’s family and re-establishing her belonging in the community. Her destitution and homelessness would also limit her ability to mitigate any risk she may face in the unlikely event her first ex-husband should decide to pursue her in some way, also discussed further below.
In conclusion, I find that the applicant faces a real chance of treatment amounting to serious harm under s 5J(5)(d)(e and (f) of the refugee criteria as in Vietnam she would be destitute, lack any family support, be unable to support herself through any livelihood and she would struggle to access state support for basic services due to the lapse of her civil documentation and difficulties she would likely face reinstating it. Even if she were able to access the available government services, including a pension, I find that this would still be insufficient to meet her basic subsistence and health needs. Thus there is a high risk she will face deprivation of her basic needs and be unable to subsist in Vietnam, and thus this claim does reach the high threshold required to establish serious harm.
Particular social group being the ‘essential and significant’ reason for harm feared
As noted above, the definition of ‘well-founded fear of persecution’ requires, relevantly, that the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group (‘PSG’). In addition, the reason or reasons must be the ‘essential and significant reason’ for the persecution feared: ss 5J(1)(a) and (4)(a) of the Act.
The applicant’s representative has submitted that the applicant is a member of a particular social group, variously defined, but essentially related to a combination of characteristics which render members of this group, to be particularly vulnerable. The characteristics of the proposed social group include elderly divorced woman with physical and mental health issues, who lack any family support due to having defied cultural gendered norms, with limited prospects for employment or state support due to lack of civil documentation, who fear further family violence and victimisation by loan sharks.
I have considered but am unable to find that ‘victims of debt collectors’ can be included as an immutable characteristic as part of a defined particular social group. Both the applicant’s evidence and the available country information suggest that any threat or harm caused to the applicant by debt collectors would arise predominantly due to the applicant’s failure to repay the money owed by her. This is the ‘essential and significant reason’ for the harm feared by the applicant. I do not accept that the characteristic of being a ‘victim of debt collectors’, can be said to be one of the ‘innate or immutable’ characteristics of members of this group. I find on the evidence, that if the applicant repaid her debts, she would cease to be a ‘victim of debt collectors’ and therefore she would also cease to be a member of this aspect of the social group. I note that the other criteria for a PSD as per s 5L(c) are also not met, as being a ‘victim of debt collectors’ is not a characteristic fundamental to identity or conscience and nor, according to DFAT,[29] is it a characteristic that distinguishes the group from society. Inclusion of ‘victim of debt collectors’ also fails to meet the criteria in s 5L(4), which requires the characteristic to not be a fear of persecution, whereas the descriptor ‘victim of debt collectors’ is defined by the persecution feared, being debt collectors.
[29] DFAT Country Information Report Vietnam 19 February 2025, [3.183].
However, based on the evidence set out above, I find there is a clear case for recognising the existence of a different identifiable particular social group being ‘elderly destitute Vietnamese women unable to work and without any family support’. The country information above supports a view that gender is at the heart of the vulnerability faced by the applicant, including as a driver of the poverty and destitution she faces, alongside her age, with both of these factors being immutable elements that underpin the reasons why she lacks any family support or the ability to support herself. ‘Elderly destitute Vietnamese women unable to work and without any family support’ is an identifiable, recognised group in Vietnamese society, whose members share multiple immutable characteristics that render them particularly vulnerable, putting them at risk of serious harm.
I further find that the applicant is a member of this group being ‘elderly destitute Vietnamese women unable to work and without any family support’ and that it is her membership of this group which provides the ‘essential and significant reason’, in accordance with s 5J(4)(a), for why she faces serious harm, being a threat to her ability to subsist or have her other basic needs met, upon her return to Vietnam.
Links between social group membership and other risks faced; lack of effective state protection from risks across Vietnam
I also find that the applicant would be unable to mitigate the risks she faces as an elderly destitute Vietnamese woman unable to work and without any family support, through relocating to another part of Vietnam, as she would face the same risks of harm across all areas of Vietnam, thus she satisfies s 5J(1)(c). In any event, her destitution would prevent from her relocating, with this limitation on her mobility also exposing her to higher risk from debt collectors or potentially from her first ex-husband, due to her inability to take mitigating steps to move location if necessary. This adds further risks of potential harm to those she already faces due to her membership of the social group, as further discussed below. I further find that while the Vietnamese government is incrementally improving the services it is able to offer elderly destitute Vietnamese women unable to work and without any family support, it will remain unable or unwilling to provide the applicant with effective state protection from the identified threats to her subsistence based on her membership of this particular social group, for the foreseeable future and thus the applicant meets s 5J(2) of the Act.
I therefore conclude that the applicant does face a real chance of serious harm due to her membership of a particular social group being elderly, destitute Vietnamese women unable to work and without any family support and that she is a person owed protection obligations by Australia under s 36(2)(a) of the Act.
Applicant’s fear of family violence
As per my findings above, I have already found that the applicant faces serious harm due to her membership of a particular social group. While this social group does not explicitly include risks arising from her lived experience of family violence from her first ex-husband or her risk of future family violence, like the gendered nature of the destitution she faces, the risk she faces of family violence is also closely linked to her gender. Her previous experience of family violence is an element that continues to contribute to her ongoing vulnerability, especially as her fear of her ex-husband prevents her from returning to her home area where she may otherwise, over time, have become somewhat less vulnerable than she would be in a location to which she has no connection, which is the future she now faces in Vietnam.

100. I accept that the applicant has suffered from being in a long-term abusive relationship with her first ex-husband and that she has paid a very high price for her decision to escape from this relationship, especially regarding her children’s rejection of her for this reason. I further note that after she came to Australia, her first ex-husband made threats to harm her if she were to return to Vietnam. I accept that these threats were initially communicated to her via her daughter, around the time that she formed a new relationship and then later, via friends connected to her daughter. It is difficult to assess the seriousness of these threats both at the time they were issued and whether these threats retain any currency now, many years later. The combination of the length of time since the threats were made and the ex-husband’s earlier agreement to the divorce initiated by the applicant, cause me to question whether there is a ‘real chance’ level of risk that the applicant’s first ex-husband continues to be motivated to seriously harm the applicant if she were to return to Vietnam.
101. Nonetheless, I do not exclude there being any risk of him continuing to harbour a grudge against her, which he may be motivated to act upon should the applicant encounter him in Vietnam. In forming this view, I take into account the applicant’s evidence that his personality or behaviour was erratic throughout their marriage and relevant information below regarding family violence in Vietnam and known patterns of behaviour relating to family violence more generally. The information below highlights the high incidence of family violence, including psychological and economic abuse, being the forms of family violence specifically experienced by the applicant in her former marriage and how, despite legal reforms, state protection from family violence remains ineffective in practice, especially for women in rural areas.
In-country sources reported in October 2023 that domestic violence against women was a major concern. The risk is greater in rural areas, where traditional, conservative cultural gender roles and norms are stronger, although in-country sources said domestic violence was a countrywide phenomenon. Women disproportionately experience domestic violence, typically by their intimate partner, although men and people of diverse sexual orientations and gender identities may also experience domestic violence. A 2019 Government of Vietnam study found that 63 per cent of women had experienced physical, sexual, emotional, behavioural and/or economic violence by their husbands or male partners in their lifetime. Domestic violence prevalence rates were higher in rural and remote areas, with the highest rates of physical violence reported in the Central Highlands and Red River Delta regions, which have large concentrations of ethnic minority communities, and among women with disability. Psychological abuse, including coercive control, was the most common form of violence experienced by women according to the 2019 survey. In-country sources reported that the rate of domestic violence increased during the COVID-19 pandemic and associated economic pressures and mobility restrictions. [30] [Emphasis added]

[30] DFAT Country Information Report Vietnam, 19 February 2025, [3.131].
102. I also note DFAT’s assessment that ‘state protection exists and is improving for women experiencing GBV,’[31] however that this assessment comes with the significant caveat that ‘cultural factors and lack of policy training and capacity can reduce its effectiveness and/or can place individuals at further risk of violence, particularly so in rural areas.’[32] Other information provided in the DFAT report suggests that police response and legal protection from family violence in Vietnam remains highly unreliable and highlights how perpetrators largely enjoy impunity.
[31] Ibid, [3.138].
[32] Ibid, [3.138].
Police officers are overwhelmingly male and, according to in-country sources speaking in October 2023, tended to blame and shame the victim, which discouraged victims from seeking police protection. Male police officers can lack sensitivity and might not understand, or appropriately apply, laws and policies relating to domestic violence. In some cases, police will take the matter seriously and arrest the perpetrator; in others, they will be dismissive and encourage the matter be resolved privately or, most commonly, through grassroots mediation. In principle, mediation is voluntary, requires the consent of both parties and must respect the woman’s safety. In-country sources expressed scepticism about the effectiveness and appropriateness of mediation in domestic disputes involving physical violence – mediators lacked the requisite skills, and individuals who had experienced GBV were encouraged to compromise, which increased their risk of further violence. Where legal action is taken, domestic violence claims are pursued as civil – rather than criminal – matters, unless the affected individual is seriously injured. Of the 3,260 cases of domestic violence reported by the Government of Vietnam in 2023, most perpetrators (around 3,000) were issued; only 129 had criminal charges filed against them.[33] [Emphasis added]
[33] Ibid, [3.136].

103. Further, the Australian Strategic Police Institute reported:
Beyond the workplace, Vietnam’s efforts towards gender equality are hindered by ingrained patriarchal structures and conservative attitudes towards women. Domestic violence and spousal rape are illegal under Article 2 of the Law on Domestic Violence Prevention and Control but, as reported by Australia’s Department of Foreign Affairs and Trade last year, domestic violence victims in Vietnam are often discouraged by police from bringing criminal charges. A victim-blaming culture and traditional views of marriage and honour, along with the treatment of domestic violence as a private matter, perpetuate the problem. To change such attitudes, the government needs to invest further in public-awareness campaigns, education programs and research.[34] [Emphasis added]
[34] Australian Strategic Policy Institute, ‘Taking Vietnam’s Gender Equality challenge beyond policy reform’, 2023.

104. Based on this information, I find that while the applicant may not face a ‘real chance’ of future violence from her first ex-husband, there is some chance of this occurring, and if it were to occur, I find that she would likely face treatment amounting to serious harm in circumstances where I am not satisfied that she would receive effective state protection from such harm. This risk of family violence continues to contribute to the applicant’s ongoing vulnerability and increases the cumulative risk of serious harm she could face upon return to Vietnam.
The applicant’s fear of debt collectors
105. I return to the issue of the applicant’s claims to fear debt collectors, as this is also another element of her claims that may increase the level of risk she may face in Vietnam. While her fear of debt collectors is not a composite element of the particular social group for which her membership renders her at risk of serious harm, as discussed above, her membership of that social group does still increase her vulnerability to being unable to protect herself or take mitigating steps, should debt collectors decide to re-establish their previous campaign of harassment and threats against her. The risk of this occurring is assessed below.
106. I accept the applicant’s evidence that she continues to owe to a bank and to several unofficial lenders approximately VND[amount] (AUS[amount]) and interest on this amount over the last 28 years, likely payable at different rates between the bank and higher rates to the unofficial lenders. I accept that the applicant does not have any income or savings in Australia and that she would be returning to Vietnam without having made any further repayments on these loans. The applicant has no knowledge as to whether the bank or unofficial lenders have now ‘written off’ the debts or whether, if the applicant returned to Vietnam, they may initiate legal proceedings against the applicant for repayment of the debts.
107. I note that the applicant’s creditors likely still retain a legal right to seek repayment of the loans despite them being provided to her some decades ago. I note that the usual method for debt recovery in Vietnam is via civil debt recovery processes, including under the Law on Credit Institutions, the Law on Bankruptcy and the Civil Code, amongst others. Debt recovery options are described below by a law firm specialising in debt recovery in Vietnam:
Vietnamese law provides two main debt collection methods: negotiation and litigation. Debtors are typically first contacted by the creditor, who will attempt to negotiate a payment plan. If the debtor does not respond to the creditor’s request or they are incapable of reaching an agreement, the creditor may file a lawsuit with the court. Once the case is filed, the court will set a hearing date and notify the affected parties.
At the hearing, each party will have an opportunity to present their case and argue their position. At this stage, it is ideal for both parties to have lawyers representing them as this will give them access to knowledge on court processes and legal requirements.
The court will then issue a decision, which may require the debtor to pay the debt in full or take other actions. Sometimes, debtors may be ordered to pay damages or interest in addition to the debt itself. Additionally, debtors who fail to comply with a court order may be subjected to enforcement actions, such as wage garnishment or property seizure.[35]
[35] Le and Tran, ‘Debt Settlement Lawyer and Debt Recovery Law Firm in Vietnam’, available at Debt Settlement Lawyer and Debt Recovery Law Firm in Vietnam. .
I find that if the bank or the unofficial lenders were to instigate legal proceedings against the applicant according to regular civil law debt recovery processes, as set out above, that would constitute a general application of law, and not any kind of persecutory act against the applicant, for the purpose of assessing her protection claims.
108. However, the applicant’s main fear lies around the non-legal methods of debt recovery she may face in Vietnam. Regarding the money she owes to a bank, I have no evidence before me to indicate that regular banks in Vietnam engage in unlawful methods to pursue debt recovery. I therefore find that the applicant does not face a risk of serious or significant harm relating to the VND[amount] debt that she owes to a regular bank.
109. In assessing the level of risk posed by the unofficial money lenders, I have considered the country information provided in the 2025 DFAT report, regarding different categories of unofficial money lenders in Vietnam and the differing risks they may pose to debtors.
According to the United Kingdom’s Home Office, unofficial moneylending services may also be provided by neighbourhood money lenders, which were less likely than criminal syndicates to charge high interest and employ harassment to recoup debts…[36]
[36] DFAT Country Information Report Vietnam, 19 February 2025, [3.176].
There is a potential for reprisals for unpaid debts, particularly where the creditor is an organised criminal syndicate. According to in-country sources, speaking in October 2023, reprisals might be carried out by individuals hired by creditors to exert pressure on debtors, rather than by the creditors’ themselves (some loan sharks had established legitimate debt collection companies to pursue unpaid debts). Reprisals can take various forms, ranging from psychological pressure and public embarrassment to intimidation and violence, although in-country sources said violence was not typically used. Specific reprisals may include property damage, asset seizures, playing of loud music outside debtors’ homes, and sending funeral wreaths to their homes or workplaces. While the use of violence was not common, the disruption to a debtor’s life – and associated psychological pressures – was sometime acute. In-country sources reported instances of creditors or their contractors moving into a debtor’s home, including eating their food, until the debt was repaid in part or in full. Debtors’ family members may also face verbal and physical harassment and threats[37]…
[37] Ibid, [3.177].
DFAT assesses people who owe money to loan sharks do not face official or societal discrimination, with harassment from money lenders mitigated through relocation. When money is borrowed from criminal syndicates, particularly large, organised syndicates, the risk of harassment even after relocation may remain high. When money is borrowed from smaller, community-based lenders, the risk of harassment following relocation is lower. While it cannot be discounted entirely, DFAT assesses the risk of violence for the purpose of recovering unpaid debt to be low overall. The risk of violence may increase where the debtor seeks to consistently evade the creditor, or larger scale criminal syndicates are involved.[38]
[38] Ibid, [3.183].

110. Reflecting on this country information and how it relates to the applicant’s evidence, it is difficult to characterise the nature of the unofficial lenders in the applicant’s case, as either ‘neighbourhood money lenders’ or ‘organised criminal syndicate’ money lenders. Looking at the applicant’s evidence regarding the patterns of behaviour of the debt collectors, she said they would visit her house or otherwise find her and threaten her with physical harm approximately every two or three months over a lengthy period, possibly up to two decades, until the time she left Vietnam in 1997. I recognise that these threats in themselves, which I accept occurred, constitute persistent harmful conduct against the applicant. Living in constant fear of these visits and the possibility that the threats to use violence may be realised, without any means to make the demanded payments, is in itself serious harm.
111. Assessing the risk of the applicant continuing to face persistent threats and harassment at the same level as in the past, or whether it may become of an even higher level, is difficult to assess, given that so little is known about the particular money lenders in question. What can be seen from their previous long-term conduct is that they are highly persistent in seeking repayment of the loan from the applicant. They did not give up their harassment of her despite likely being aware of the applicant’s impecunious circumstances. However despite her only paying a portion of the interest when she could, it is also notable that they never escalated the pressure on her by actually following through on the threats to use physical violence against her. Nor did they use other ways mentioned in country information, to harass her or other family members, even when she was unable to make any repayments. Notable also is that after the applicant left Vietnam, the debt collectors appeared to give up on trying to pressure her former husband to make repayments, due to his alcoholism and being viewed as ‘a lost cause’, suggesting that these particular loan sharks may not persist with their harassment if they are satisfied the prospects of any repayment is negligible.
112. In considering the risks facing the applicant now, some 28 years after she left Vietnam and likely some 48 years or so since she took out the loans, despite the length of time involved, I very much doubt that these loans would be considered forgotten or forgiven by the debt collectors. If the debt collectors were to become aware that the applicant had returned to Vietnam, then they are likely to assume that after spending 28 years in Australia, she has some money or at least access to money throughout others, that she can draw upon. The debt collectors may therefore consider it worth their while to recommence their campaign of harassment against her, especially due to her long period of absence from Vietnam living in a ‘rich’ country.
113. Regarding the risks of debt collectors becoming aware that she has returned to Vietnam, considering the applicant would find herself in a highly vulnerable situation upon returning to Vietnam, I find that it would be unlikely she would return to Bac Lieu, despite her sister living there, mainly due to her fear of encountering her ex-husband. She does not know if any of her children remain there or not. She has never lived in any other part of Vietnam and does not have relatives or connections to people elsewhere in Vietnam. It is impossible to ascertain where she would go to try establishing a new life, given she will be destitute and homeless. However it is still likely that people she has known in the past will come to know that she has returned to Vietnam and therefore it is not fanciful to think that this knowledge may also find its way back to the debt collectors. In addition, I find that the debt collectors may well remain motivated to continue their pursuit of their money from the applicant given they will likely assume that she has capacity to pay, or others she can turn to from her life in Australia if enough pressure is applied to her.
114. In considering the degree of harm she may face from the debt collectors, I note in the country information above, that even where a ‘neighbourhood money lender’ is involved, DFAT assess the only way to reduce the risk of harassment or harm would be through relocation. In the case of money lenders associated with criminal syndicates, DFAT assess that debtors may continue to face risks of serious harassment, despite relocation, due to the capacity of debt collectors to track them across Vietnam. While DFAT assess the risk of either category of debt collector using physical violence, remains ‘low’, as per my finding above, I assess that persistent visits and threats would constitute treatment amounting to significant harm, particularly given the applicant is an elderly and vulnerable person, even where such threats are not carried through or physical violence is not used. As noted above, I also find that the applicant’s destitution would limit her ability to take mitigating steps to protect herself, such as through relocation. For this combination of reasons, I therefore find that the applicant does face a real chance of serious harm from debt collectors upon return to Vietnam. This risk further contributes to the cumulative level of risk she faces due to the combination of factors arising from her membership of a particular social group, as well as the risks she faces from debt collectors and future family violence.
CONCLUSION
115. For the reasons given above, I have found that the applicant faces a real chance of treatment amounting to serious harm due to her membership of a particular social group, being elderly destitute Vietnamese women unable to work and without any family support.
116. While not legally necessary, I have also assessed the risks the applicant faces of continuing family violence from her first ex-husband and harm from debt collectors, as these are also relevant integers of her claims informing the holistic spectrum of risks she faces in Vietnam. My findings that she faces some risk of family violence and a real chance of serious harm from debt collectors also interact with her membership of the particular social group as defined, as her destitution would prevent her from taking mitigating steps to relocate, should the family violence or debt collector risks be realised, further confirming my view that she is a person owed protection obligations in Australia as a refugee.
117. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
118. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 15 May 2025
Representative: Refugee Legal
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.
…