2118715 (Refugee) - [2025] ARTA 2092

2118715 (Refugee) [2025] ARTA 2092 (17 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2118715
Tribunal:General Member G Simm
Date:17 September 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)(aa) of the Migration Act.

Statement made on 17 September 2025 at 8:09am
CATCHWORDS
REFUGEE – protection visa – Vietnam – threats from business creditors – forced sale of land to pay debts – economic hardship – violence and threats to kill by husband – previous travel to other countries and Australia before applying for protection – no treatment for mental health – complementary protection – husband and applicant both in contact with children, with possibility of husband learning applicant’s return and whereabouts – husband’s refusal to divorce and continuing motivation to harm – consistent and credible evidence – country information – domestic violence, economic conditions, employment, social welfare and mental health services – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (5)(a), (c), 36(2)(aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
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 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 4 June 2021. The delegate refused to grant the visa on 30 November 2021.
The applicant appeared before the Tribunal on 15 May, 29 July and 15 September 2025 by phone to give evidence and present arguments. The hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was unrepresented in relation to the review.
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.
BACKGROUND
The applicant is [Age] years old and was born in [District], Bac Lieu province, Vietnam. She describes herself as of Kinh ethnicity. She speaks, reads and writes Vietnamese. She used to have no religion but is now a Protestant Christian. Based on oral and documentary evidence, I accept the following to be true:
a.    Her mother is aged over [Age] and lives in Bac Lieu province. Her father has passed away. She has [brothers] and [sisters] who live in Bac Lieu. One of her sisters lives with her mother and is her carer. She speaks with her mother and this sister by phone twice weekly and sends them money once a month. Her other sister is a farmer. Her brothers have businesses buying and selling [product]. She is in contact with these [siblings] by phone once a month. All her siblings have children and grandchildren.
b.    The applicant left school in Year 5 due to the war. She and her family had to leave Bac Lieu and relocated to Rach Gia province. After the war they went to Ca Tho and she started helping her family with [produce 1 farming].
c.     When she was [age] years old, she married her husband. She had her first daughter aged [age], her second aged [age], her third aged [age] and her fourth aged [age]. All her daughters are now married and she has [grandchildren]. They live in [District] and work in [produce 1 farming]. She speaks with them at least twice a week and sends them money for their children sometimes.
d.    She previously travelled on a holiday to [Country 1] for 5 days in 2018 and to [Country 2] for 14 days in 2019. Apart from this she has not travelled outside Vietnam except to Australia.
e.    She travelled to Australia on a Visitor visa three times. The first time was in December 2019- February 2020. The second time was in March -June 2020. The third time, she arrived [in] March 2021, applied for a protection visa on 21 June 2021, and has not departed Australia since.
f.   After she applied for a protection visa, she worked as a seasonal worker in Adelaide for a few months on [a produce 2] farm then moved to Darwin and worked on [a produce 3] farm. She moved back and forth between Adelaide and Darwin with the seasons. She has been living in Darwin for two years and she currently shares accommodation with co-workers.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
In her protection visa application the applicant claimed as follows:
AFTER FINISHED SCHOOL, WORKING FOR LIVINGS, DAY BY DAY THE BUSINESS RUNNING DIFFICULTIES AND CAUSING DEBTS AND DEBTS TO MANY CREDITORS TILL AT THE END OF WALL. THEN I HAVE NO CHOICE TO HIDE AROUND AND SEEK TRAVEL OUT OF COUNTRY FOR RELIEVE AND WORKING FOR SAVING THEN REPAY THE DEBTS. AS IN THE COUTNRY THE CREDITORS CHASING AND THREATEN, SO UNSECURE DAY BY DAY. ALSO UNFAIR LAND DISPUTED ISSUES.
SINCE SEPARATE, DISCRIMINATE BY HUSBAND AND THEIR FAMILY AND VIOLENTLY
I HAD TO HYDE FAR AWAY FROM THEM AS FAR POSSIBLE.
AS REPORTED ABOVE, THE CREDITORS CHASING AROUND THE COUNTRY CAUSING MENTOL ISSUES AND NO WHERE TO GO OR LIVE.
In response to the question why the applicant did not try to move to another part of the country:
NO FINANCIAL SUPPORTED AND THE LIFE THREATEN FROM CREDITORS.
In response to the question what would happen to the applicant if she returned:
AS REPORT ABOVE, THE OUTLAW CONLECTION CREDITORS HAVE EYES EVERY WHERE AND COULD NOT LIVE IN PEACE FOR WORKING OR LIVING DAY BY DAY. SEEKING PEACE LIVING FOR A WHILE TO WORK AND REPAY THE DEBTS.
In response to the question about how, by whom and why the applicant would be harmed:
AS REPORT ABOVE, WOULD BE HARM BY THE OUTLAW CONLECTION CREDITORS AND NO WHERE OR SAFE PLACE TO GO OR LIVES.
In response to the question about whether the authorities could or would protect her:
THE AUTHORITIES WOULD NOT OFFER ANY PROTECT TO NORMAL CITIZEN AS OF PRIVATE ISSUES.
In response to whether the applicant could relocate within the country or to another country:
NO ACCOMMODATIONS TO OTHER AREAS, NO FINANCIL SUPPORTED.
The applicant submitted copies of the bio data and stamped pages of her passport in support.
The delegate did not invite the applicant to interview. He found that the applicant had not specified the particulars of her claims nor provided any evidence in support so she was not a refugee or entitled to complementary protection.
Evidence before the Tribunal
At hearing the applicant gave evidence that she had paid someone who spoke Vietnamese but was not a lawyer or a migration agent to submit her protection visa application form. She did not know what the form contained or have a copy of it.
I asked why the applicant travelled to Australia on a visitor visa and returned to Vietnam twice before applying for protection on her third visit to Australia. She said that her neighbour, whom she referred to as younger brother, had organised for her to travel to [Countries 1-2] on short holidays to take a break from her depressing circumstances at home. She stated that he had wanted her to take a break from her situation so he asked her to look after his mother. She also travelled with him and his family on two trips of over two months to Australia in 2019 and 2020. She said that they treated her like a family member. When asked why she had not applied for protection on her first trip to Australia, she said that at that time, she had no understanding of the different types of visas available and did not realise she could be protected. When she returned to Vietnam, she had to face the risk again and she was very scared. She only visited her mother and did not see her husband. So when she had a chance to return to Australia, she tried to find a way to stay.
Loan shark
The [produce 1 farming] business she and her husband ran was unsuccessful so her husband borrowed money from loan sharks. She was not sure how much he borrowed, or from whom, and did not have any documents in relation to the loan, which was not in her name. The interest rate was 30%. At one point the loan shark forced them to sell their farm land to repay her husband’s debts. To the best of her knowledge, there is no longer any debt outstanding.
Family violence
The applicant’s marriage was not happy. She described her husband as a playboy and a chronic gambler who was physically violent and abusive towards her. He borrowed money to finance his gambling addiction, in addition to his debts relating to the business. When the children were at home, he behaved better but when she was on her own with him, she did not feel safe. He threatened to kill her. She complained to the local government (commune) about him. They gave him an oral warning but he continued as before.
She couldn’t stand it any longer so she separated from the family. She moved to Saigon and worked as a [workplace] worker for several years. She became very depressed and felt suicidal. She was in hiding from her husband but in contact with her children.
The applicant’s last contact with her husband was in 2018 or 2019 in person. Her husband is now aged [Age] and lives with their youngest daughter in what had been the applicant’s family home. He would not let the applicant enter her previous home and said that she was a sinner because she had left the family. She requested him to agree to a divorce but he refused. He said he would only sign the forms if she returned and talked directly to him.
All the neighbours had been aware of the family violence because he had hit her and threatened to kill her. When asked what he would do if she returned, she stated that she didn’t know, but she was afraid that he would do something bad to her based on her past experience. She stated that she really hated him and she did not wish to return because she was still worried that her husband would kill her if he saw her again.
Mental health
The applicant does not wish to return to Vietnam as she is traumatised by her husband’s treatment of her. She has visited her GP in Australia who prescribed medication to help her sleep but she does not have a formal diagnosis. Otherwise she has not received any treatment for depression or trauma in Vietnam or in Australia.
Economic hardship
The applicant will find it difficult to earn a living in Vietnam. She stated that her daughters did not treat her well and she would not be able to live with them. She stated that if she were allowed to live in Australia she would be a good citizen and would give half of what she earned to the government.
Further evidence provided at hearing will be discussed as relevant in Findings below.
FINDINGS AND REASONS
The issue in this case is whether the applicant is entitled to a protection visa due to domestic violence. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Findings
Nationality
The applicant has consistently given evidence that she is a citizen of Vietnam and provided a copy of her Vietnamese passport to the Department and to the Tribunal. The Tribunal finds that she is a Vietnamese citizen and has assessed her claims against Vietnam as the country of nationality and the receiving country.
There is nothing before the Tribunal to suggest that the applicant has citizenship of any other country or any right to enter and/or reside in any third country. Based on the evidence before it, the Tribunal is satisfied that s 36(3) of the Act does not apply. The Tribunal is satisfied that Vietnam is the applicant’s receiving country and has assessed her claims against that country.
Credibility
I accept the applicant as a credible witness. She answered my questions directly and without embellishment. Her evidence at hearing was generally consistent across three hearings and with the documentary evidence of her travel. Her evidence was not always reliable in relation to dates but this does not undermine her evidence in general.
Claims
I have considered whether the applicant has a subjective fear of return to Vietnam, given that she travelled to Australia on a Visitor visa for around 3 months in 2019 then again in 2020. Only on her third trip to Australia in 2021 did she apply for protection. However, I accept her evidence that all her travel was arranged by a sympathetic neighbour who wanted to provide a break for her and that she was not aware of the possibility of applying for protection on her first two trips. Returning to Vietnam to face the risks posed by her husband made her investigate options for staying in Australia.
The applicant’s education was disrupted by the war so she completed year 5 of primary school. After around five years in Australia, she speaks very little English and is unaware of medical and counselling services. She has worked on farms in rural areas in Vietnam and Australia. She lives in Darwin and has not had access to legal advice or the services of a qualified migration agent. The applicant did not have access to a smart phone and it was difficult for the Tribunal to contact her as she relied on her friend to receive communications from the Tribunal, resulting in her case being dismissed and reinstated before the first hearing and then again before the second hearing. Most importantly, she was not aware that being a victim-survivor of family violence could be grounds for protection. Given her circumstances, it is unsurprising that she took some time to navigate Australia’s migration system and apply for a protection visa. I therefore do not regard her personal circumstances as undermining her claim to fear harm on return to Vietnam.
If returned to Vietnam, I find that the applicant will return to her village in [District], Bac Lieu province, because she does not know where else to go. I accept her evidence that she will contact her children because she is their mother. Her husband, who lives with her youngest daughter, will therefore find out that she has returned. I find that he is still motivated to harm her, whether by assaulting her or carrying out his threat to kill her. This is because she wants to divorce him and because he considers her a sinner for separating from him and leaving the family.
Country Information
Violence against women
In its February 2025 Country Information Report on Vietnam, DFAT makes the following observations on domestic violence:[1]
[1] DFAT, Country Information Report – Vietnam, 19 February 2025 (DFAT 2025).
3.129    The Law on Domestic Violence Prevention and Control, passed in 2007 and revised in 2022 (with the revised law effective from July 2023), identifies 16 acts as constituting domestic violence. These include: threatening behaviour; psychological pressure; neglect; isolation; preventing family members from having lawful and healthy social relations; sexual acts against a spouse’s will; forced pregnancy, abortion or foetal sex selection; spreading information about family members designed to offend their honour and dignity; forcing family members to overstudy, overwork or make financial contributions beyond their capacity; and controlling family members’ property and incomes in order to create dependence. The Law on Domestic Violence Prevention and Control (2022) also bans perpetrators of domestic violence from contacting their victims, and provides for medical treatment, temporary shelters, legal aid, mental health counselling and skills training for victims. Punishments for domestic violence range from warnings to three years’ imprisonment, depending on the nature and severity of the offence; perpetrators may also have to undergo education to help them terminate acts of domestic violence. The UN Special Rapporteur on the right to development, writing in November 2023, commended Vietnam’s ‘human rights-based approach’ toward domestic violence.
3.130    Women’s rights CSOs are relatively free to operate and advocate for reform, and provide training to police and judicial officers. The Law on Domestic Violence Prevention and Control (2022) allows CSOs to receive government funds to deliver domestic violence prevention and response services.
3.131    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. The Government of Vietnam reported 3,260 cases of domestic violence in 2023 (down from 4,454 reported cases in 2022), including: 1,520 cases of physical violence; 1,400 cases of psychological violence; 230 cases of economic violence; and 110 cases of sexual violence. Of the 3,240 cases reported in 2023, 565 victims were men, a 20 percent increase from a year earlier.
3.132    People who experience domestic violence (and GBV more broadly) can report to the police or to the chair of their commune’s People’s Committee. The Government of Vietnam, mass organisations (e.g. the Vietnam Women’s Union) and CSOs provide GBV support services to women who experience domestic violence, including dedicated 24/7 hotlines, medical care, mental health counselling and legal advice. Emergency shelters also operate, and provide accommodation and medical, legal and livelihood services to women fleeing violence. These shelters include: three ‘Peace House’ shelters run by the Vietnam Women’s Union (two in Hanoi, one on Can Tho); four Anh Duong (‘Sunshine’) Houses (Ho Chi Minh City, Da Nang, Thanh Hoa and Quang Ninh provinces), of which two are government-run and two are CSO-run; and one ‘One Stop Service Centre’ (Huong Vuong Hospital, Ho Chi Minh City). In-country sources reported in October 2024 that women who accessed these shelters could stay between two weeks and six months, and may be accompanied by their children. Before they leave, an assessment is made whether it is safe and viable to do so. In-country sources said shelters were safe and clean (DFAT understands some are comparable to Australian shelters) but were concentrated in urban areas and insufficient for Vietnam’s size and violence prevalence. Women who experience domestic or other forms of GBV in remote areas of the country can access government-run Social Assistance Centres located in their provincial capital.
3.133    According to in-country sources, Social Assistance Centres had limited resources, and their staff often lacked adequate GBV-related skills and knowledge (the Centres have a broad remit, and also provide support to elderly persons, people with disability and orphans, among others). In-country sources said GBV support services in Vietnam had improved in terms of availability and quality but judged they were inadequate overall. The availability and efficacy of support services for men experiencing domestic violence is beyond the scope of this report.
3.134    In practice, most instances of GBV, including domestic violence, go unreported, and support services are under-utilised. Nearly half (49 per cent) of women who participated in the Government of Vietnam’s 2019 study said they did not report the violence against them, including to family or friends, and over 90 per cent never sought formal support services, citing that they were deterred from seeking help and speaking up because they had normalised the violence and/or because they feared doing so would result in aspersions being cast upon them (that is, they would not be considered a ‘good wife’). Of those who did seek help from a formal service, 4.8 per cent went to the police, 3.6 per cent went to local leaders, 2.3 per cent went to a hospital or health professional, 2.3 per cent went to a court or legal centre, and 2.3 per cent went to a women’s organisation. Less than 1 per cent went to a shelter. Respondents generally sought help only when they were injured and/or could no longer endure the violence.
3.135    In-country sources also attributed the under-reporting of GBV and under-utilisation of support services to practical and cultural barriers. Victims may feel shame or guilt, fear stigma by authorities and society and, with it, a loss of face for themselves and their families. In-country sources said prevailing social attitudes also did not help – many people did not see violence against women in the home as a crime or, at least, considered it a private matter that should be resolved between the victim and the perpetrator. In the case of sexual harassment or rape victims, marriage prospects may be diminished where it becomes public knowledge. Traditional cultural attitudes may act as a deterrent, too: if it became known a woman was staying at a shelter, this could bring shame and stigma when they return to their community.
3.136    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 warnings or fines; only 129 had criminal charges filed against them. In August 2023, the MPS and UN Women launched gender-sensitive guidelines for police officers at the grassroots level handling cases of violence against women, although the practical effect of this initiative was unclear at the time of publication.
3.137    Relocation for those who have experienced GBV is possible in theory but difficult in practice. Barriers to relocation may include economic factors (e.g. the inability to rent a property due to lack of funds or lack of properties for single people), an absence of support networks, difficulties in relocating children (e.g. due to custodial arrangements), and stigma and cultural attitudes.
3.138    DFAT assesses state protection exists and is improving for women experiencing GBV, including domestic violence, although 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. DFAT assesses women experiencing domestic violence have access to support services; however, cultural and structural factors, including stigma, dependence and a lack of awareness of the availability of these services, create barriers to access. The ability to relocate to escape a perpetrator depends on individual circumstances, including financial resources and support networks.
Vietnamese economy and employment

DFAT reports as follows on the Vietnamese economy and employment:
2.12 The World Bank classifies Vietnam as a lower middle-income country. Gross Domestic Product (GDP) per capita was USD4,000 (AUD6,400) in 2023. Incomes have expanded considerably in the last 20 years, although differences between urban and rural areas can be significant. Incomes are highest in Hanoi and Ho Chi Minh City (in July 2024, the monthly minimum wage in these cities was VND4.96 million or AUD312). Ho Chi Minh City is Vietnam’s richest; the country’s industrial engine and entrepreneurial hub, it contributes more than 20 per cent of national GDP. Services are the single largest economic sector, accounting for over 50 per cent of the economy, followed by manufacturing (33 per cent) and agriculture (15 per cent). Tourism and remittances from the Vietnamese diaspora are major sources of national income; in 2023, Vietnam received 12.6 million international visitors and USD16 billion in remittances, the equivalent of 4 per cent of national GDP. Much economic activity is informal.
2.13 Beginning in 1986, Vietnam transitioned from a centrally planned to socialist-oriented market economy under structural reforms known as Doi Moi (‘renovation’). Doi Moi promoted an export-led economic model, opened Vietnam to foreign investment, catalysed consistently high rates of growth and, with it, rapid development and poverty alleviation, allowing Vietnam to transition from a poor to middle-income country in one generation. Prior to Doi Moi, Vietnam was among the poorest countries in the world. In 2023, Vietnam’s economy ranked 34^th in the world by GDP (USD433 billion).
2.14 Exports and Foreign Direct Investment (FDI) are engines of growth: Vietnam is one of the most open, integrated and trade-dependent economies in the world. Exports contribute as much as 50 per cent of GDP and deliver a consistently large trade surplus (USD26 billion in 2023). Major exports include consumer electronics (smartphones are Vietnam’s single biggest foreign currency earner), garments, footwear, rice and coffee. Vietnam is a leading destination for FDI in Southeast Asia and occupies a prominent role in global manufacturing supply chains – over USD23 billion was disbursed for FDI projects in 2023, primarily in the manufacturing sector.
2.15 Vietnam has a thriving private sector. VinFast, a Vietnamese manufacturer of electric vehicles, is one of the most valuable automakers in the world. Major multinational corporations (including Foxconn, Samsung Electronics, Intel and Canon) use Vietnam as a production base and are important sources of employment, training and technology transfer. In October 2024, The Economist Intelligence Unit ranked Vietnam first in the world for improvements to the business environment in the 20-year period up to 2023 underpinned by, inter alia, liberal trade policies and public investments in infrastructure and human capital.
2.16 As elsewhere, the COVID-19 pandemic weighed on economic activity, although Vietnam fared well by international standards and avoided recession. Most COVID-19 restrictions, including international border closures, were lifted from March 2022. Vietnam’s economy grew 8 per cent in 2022 – the fastest rate of growth in Southeast Asia. Growth moderated in 2023 (to 5 per cent) amid weaker global demand and an associated decline in exports, although Vietnam remained among the fastest growing economies in the region. Inflation in 2024 was close to the 4 per cent threshold set by the National Assembly. In October 2024, the International Monetary Fund (IMF) projected economic growth of 6.1 per cent in 2024 and 6.1 per cent in 2025. The Government of Vietnam set a 2024 growth target of 7 per cent. Despite the impacts of a major natural disaster in September 2024 (Typhoon Yagi), the economy expanded 7.4 per cent year-on-year in the third quarter of 2024 – its fastest rate of growth in two years.
2.17 Vietnam’s strong economic performance over several decades has resulted in significant poverty reduction and a growing middle class. The rate of multi-dimensional poverty was 4.3 per cent in 2022, down from 18 per cent in 2012 (and 58 per cent in 1993). Where it exists, poverty is concentrated in ethnic minority communities, which live primarily in rural and mountainous areas in the Northwest and Central Highlands, where the main industry (agriculture) is less productive and remote locations limit access to services and markets. Addressing poverty within these communities is a longstanding priority for the Government of Vietnam. Extreme poverty among the Kinh (the largest ethnic group in Vietnam) has largely been eliminated. After completing a country visit in November 2023, the UN Special Rapporteur on the right to development recognised Vietnam’s ‘considerable advances’ in implementing the UN’s Sustainable Development Goals, including with respect to poverty reduction and access to clean water and sanitation. Nearly 100 per cent of rural households have electricity, up from 14 per cent in 1993. In 2022, the Global Food Security Index ranked Vietnam 46^th in the world for food security, ahead of its mainland Southeast Asian peers, including Thailand. Vietnam sits in the UNDP’s ‘high human development’ category (since 2019), indicating a long and healthy life expectancy, access to knowledge and a decent standard of living.
2.18 Despite Vietnam’s significant economic progress, in-country sources reported in October 2023 that economic factors remained the primary driver of emigration from Vietnam.
Employment
2.19 Revisions to the Labour Code (ratified in 2019 and effective from 2021) prohibit discrimination in employment based on sex, race, skin colour, nationality, ethnicity, age, religion, political views, marital status, pregnancy, disability, HIV status or membership of a union. The Labour Code (2019) likewise prohibits sexual harassment in the workplace. At the time of the 2019 census (the most recent), two-thirds of the population was of working age (15 to 64). The minimum monthly wage, as of July 2024, was approximately between AUD215 and AUD312, depending on locality (for Hanoi and Ho Chi Minh City, see Economic overview).
2.20 Since 2010, Vietnam’s unemployment rate has consistently ranged between 2 and 3 per cent, although youth unemployment levels (ages 15 to 24) are higher. As an export-oriented economy, Vietnam is sensitive to global economic conditions: in response to subdued external demand for manufactured goods, the Asian Development Bank estimates 15,600 manufacturing firms, on average, closed monthly between January and August 2023, resulting in hundreds of thousands of job losses. The garment, footwear, woodwork and electronic component industries felt the brunt of the layoffs, with the southern manufacturing region, including Ho Chi Minh City, hit especially hard. Many of those laid off found alternative employment, including in agriculture, fishing and the gig economy, and national unemployment remained steady overall. The IMF projected unemployment of 2.1 per cent in 2024 and 2 per cent in 2025.
2.21 The agriculture sector employs 36.2 per cent of the labour force, followed by services (35.4 per cent) and manufacturing (28.4 per cent). The government is the single largest employer, with an estimated 4.5 million workers (over 8 per cent of the labour force). Public sector jobs, and the stability of employment they provide, are highly prized, although workers in the private sector can earn more. Public sector workers must undergo political and ideological training. According to the International Labour Organization (ILO), 80,000 Vietnamese leave the country for overseas employment each year.
2.22 Vietnam has high rates of informal employment. According to the General Statistics Office, Vietnam’s official statistics agency, 33.6 million people – or 68.5 per cent of the working population – were employed informally in 2021 (this included 6 million informal workers in the formal economy). The rate of informal employment is significantly higher in rural areas: 96 per cent of workers in rural areas were employed informally in 2021. The majority of informal workers engage in agriculture, forestry, fishery, construction and family businesses. Most lack social insurance benefits and labour law protections, face greater job insecurity and lower pay, and are more likely to work in hazardous conditions.
2.23 At the time of publication, the age of retirement was 61 years for men and 56 years and four months for women. Under the revised Labour Code (2019), the retirement age has increased annually by three months for men (until it reaches 62 in 2028) and by four months for women (until it reaches 60 in 2035). Early retirement is possible in some circumstances and for some occupations (for example, people who have spent at least 15 years working highly laborious, toxic and dangerous occupations).
When asked for comment, the applicant said that poverty and unemployment were rampant in Vietnam. She stated that there was a difference between official reports and the reality; that the pension was a token amount; and that foreign investors had withdrawn, factories were idle, and that some people did not have enough to eat.
Welfare payments
DFAT reports on Vietnam’s welfare system here:
2.25 Poor and other vulnerable groups – such as, but not limited to, ethnic minorities living in disadvantaged areas of the country, people with disability, the elderly and war veterans – are eligible for social assistance, including cash allowances, concessions and subsidies. Cash allowances are modest: in-country sources reported in October 2023 that they were insufficient to live on. In response to economic disruptions caused by the COVID-19 pandemic, the Government of Vietnam gave cash transfers to poor and near-poor households, social assistance beneficiaries and informal workers, and wage subsidies for formal sector workers.
2.26 The Law on Social Insurance (passed in 2014, amended most recently in June 2024) requires formally employed persons and their employers to make compulsory contributions to a state-managed social insurance fund. People who pay social insurance receive a retirement income (aged pension), and are likewise covered in the event of sickness, workplace accident or occupational disease, and if taking maternity leave. The Government of Vietnam introduced a voluntary contribution scheme in 2006, designed to expand social insurance coverage among informal workers, although uptake has been very low. Due to Vietnam’s high rate of informal work, most people lack social insurance; in 2022, 38 per cent of the labour force was covered, mostly workers in the formal economy.
2.27 Amendments to the Law on Social Insurance passed in June 2024 and effective from January 2025 reduce the minimum number of years workers must have paid social insurance to be entitled to an aged pension from 20 to 15 years. The average monthly aged pension for those participating in the compulsory social insurance scheme was VND5.4 million (AUD340) in 2023. People not entitled to a social insurance pension are eligible for a non-contributory social pension from the age of 80. The social pension is modest (VND360,000, or AUD23, monthly in 2023, although people assessed as being in need, living alone without family support and/or with disability are eligible for a higher benefit). According to the ILO, as of August 2023, only 35 per cent of the population over the retirement age received a pension.
2.28 Formally employed persons who lose their jobs are covered by unemployment insurance funded by contributions from workers and employers. Like compulsory social insurance, unemployment insurance is linked to formal employment, and coverage is low (27 per cent of employed workers are insured according to the ILO). Beneficiaries are entitled to counselling and vocational training services in addition to payments. In 2018, payments were up to 60 per cent of one’s monthly wage from the previous six months, plus allowances for health insurance and a re-employment bonus. Persons contributing to unemployment insurance for between one and three years are entitled to three months of benefits, with an extra month for every additional year of coverage.
2.29 The Government of Vietnam has made efforts to expand welfare coverage and benefits, including through amendments to the Law on Social Insurance (passed in June 2024 and effective from January 2025). In addition to reducing the threshold for pension eligibility (worker contributions of 15 years, down from the previous 20), the revised law aims to broaden the welfare net to more people, including those working part-time and in family businesses. The Government of Vietnam has committed to increase pension payments (the National Assembly approved a 15 per cent increase effective from July 2024), including by ensuring employers contribute to the social insurance fund (some reportedly do not, despite being mandated to do so; the government said in February 2024 it was taking ‘drastic measures’ against employers that failed to pay). The UN Special Rapporteur on the right to development acknowledged Vietnam’s efforts to expand and strengthen welfare coverage following their visit to Vietnam in November 2023.
2.30 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 on welfare would generally be insufficient to sustain a recipient.
Mental Health
DFAT had this to say about the mental health system in Vietnam:
2.54    According to Vietnam’s Ministry of Health, mental illness affected 14 per cent of the population in 2023. In-country sources said in October 2023 that the most common forms of mental illness were disorders related to alcohol consumption, anxiety and depression. To promote better detection and treatment, in February 2022, Vietnam adopted a national plan to avoid non-communicable diseases and mental health disorders.
2.55    Publicly funded mental healthcare services are available in urban and rural areas, although limited in the latter. According to in-country sources, while there were some out-of-pocket costs for users, these were generally minimal and affordable as of October 2023. Specialised mental health hospitals and psychiatric units in general hospitals provide dedicated in-patient care for people experiencing severe illness, and out-patient treatment facilities for those requiring short-term care. Private facilities are also available, and some civil society organisations (CSOs) and religious organisations provide mental healthcare services. In-country sources reported that, as of October 2023, a National Institute of Mental Health (in Hanoi) and two national psychiatric hospitals (in Hanoi and Bien Hoa, the latter located in the south) operated at the national level. At the provincial level, as of October 2023, there were 36 psychiatric hospitals (24 across 31 northern provinces, 12 across 32 southern provinces), 25 psychiatric departments in general hospitals (11 across 31 northern provinces, 14 across 32 southern provinces), and mental health units attached to Centres for Social Diseases and Medical Prevention. At the grassroots level, in-country sources said mental healthcare could be accessed through district health centres and commune health stations. Medication to treat mental illness can be accessed through hospitals, health centres and health stations, although in-country sources reported that health stations (which operate at the commune level) only distributed medication for schizophrenia as of October 2023. Most medications are covered under the national health insurance scheme. According to in- country sources, medication was the primary form of treatment used to treat mental illness – counselling or psychotherapy were not sufficiently developed, and Vietnam had an acute lack of mental health professionals.
2.56    In-country sources, speaking in October 2023, said mental healthcare services at district health centres and commune health stations were limited, inadequate and some staff lacked the knowledge to treat mental illness, compared to the general quality and accessibility of services in major cities, including Hanoi and Ho Chi Minh City. Countrywide, at the time of publication, there were approximately 1,000 psychiatrists and even fewer psychologists (psychotherapy is currently not recognised as official therapy; psychologists are considered ‘technicians’ rather than professionals and can only provide psychological tests). In-country sources said severe conditions generally required in-patient care at provincial- or national-level hospitals, which could pose practical barriers to those living in remote areas.
2.57    In-country sources reported in October 2023 that the Government of Vietnam and Vietnamese society more broadly were paying closer attention to mental health since the COVID-19 pandemic, although state funding was limited and there remained a general societal reluctance to speak openly about mental health.
2.58    Stigma and feelings of shame are barriers to treatment, and some people or their families may deny a mental health problem exists in the first place. Mental illness was considered a form of weakness, particularly in the case of more severe conditions, and in-country sources reported in October 2023 that stigma was greater in rural areas, where there was less awareness and understanding of mental illness compared to urban settings. In-country sources reported stigma was most acute for schizophrenia. Depression, anxiety and post- traumatic stress disorder attracted less stigma, as most people did not associate these with mental illness. Young people may be more willing than older people to self-describe as mentally unwell and seek treatment. In-country sources estimated that only 10 per cent of people living with a mental illness sought treatment as of October 2023.
2.59    Mental healthcare services are available to those who need them, regardless of ethnicity, religion, sexual orientation or gender identity. Distance may be a practical barrier to access for those living in remote areas, and social stigma may encourage people to delay or forego treatment. DFAT assesses there is a low risk of official discrimination and a moderate risk of societal discrimination against people living with mental illness, with those living in cities attracting less stigma and able to access better services.
Conclusions on country information
Vietnam’s 2007 Law on Domestic Violence, revised with effect from July 2023, has been commended for its ‘human rights -based’ approach. Nevertheless, domestic violence against women remains a major concern, with greater risks to women in rural areas. Those who experience such violence can report to the police or the chair of their commune’s People’s Committee. Support services, which have limited resources and staff who lack relevant skills and knowledge, are insufficient for Vietnam’s size and the prevalence of violence.
In practice, most instances of gender-based violence go unreported because victims have normalised the violence or they fear reporting and generally only seek help when they are injured or can no longer endure the violence. In addition, many people do not see violence against women in the home as a crime or consider it a private matter to be resolved between the victim and perpetrator. Mediation is used to resolve disputes, with victim-survivors encouraged to compromise with perpetrators, and civil rather than criminal legal remedies pursued.
Relocation is ‘possible in theory but difficult in practice’. DFAT assesses that state protection is improving but lack of capacity can place individuals at further risk of violence, particularly in rural areas. Access to support services is hindered by stigma, dependence and a lack of awareness. The ability to relocate to escape a perpetrator depends on individual circumstances, including financial resources and support networks.

Since 1986, Vietnam has transitioned from a centrally planned economy to a socialist-oriented market economy. The World Bank now classifies Vietnam as a lower middle-income country and UNDP places it in the ‘high human development’ category. Vietnam has high rates of informal employment of up to 96% in rural areas. Most workers lack social insurance benefits and labour law protections.
The poor and the elderly are eligible for social assistance, including cash allowances, concessions and subsidies. Cash allowances are insufficient to live on and access to welfare should not be assumed. The age of retirement is 56 years and four months for women, but people not entitled to a social insurance pension, such as informal workers, are eligible for a pension only from the age of 80. Absent other means of support, such as family, sole reliance on welfare would generally be insufficient to sustain a recipient.
Publicly funded mental healthcare services are available in urban and rural areas although they are more difficult to access in rural areas. Medication is the primary form of treatment and most medication is covered under the national health insurance scheme. Counselling and psychotherapy are not sufficiently developed and Vietnam has an acute lack of mental health professionals. Stigma and share are barriers to treatment, greater in rural areas.
Does the applicant satisfy the refugee criterion for protection?
Real chance of serious harm
Under s 5J(1)(b) of the Act, the applicant fears persecution if there is a real chance that, if she returned to Vietnam, she would be persecuted for one or more of the reasons in s5J(1)(a). A real chance is one that is not remote, insubstantial or a far-fetched possibility, however, it may well be below a 50% chance.[2]
[2] Chan v MIEA (1989) 169 CLR 379, cited in MIEA v Guo (1997) 191 CLR 559 at 572.
Subsection 5J(5) provides the following instances of serious harm, which are illustrative rather than exhaustive:
(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.
Loan shark
When she arrived, the applicant claimed that one reason why she did not wish to return to Vietnam was due to ‘debts to many creditors’ and her need to hide and escape from them. I accept her evidence at hearing that the loan shark forced the sale of land she and her husband owned to repay her husband’s debt and that to the best of her knowledge, there is no outstanding debt.
For these reasons, I am not satisfied that there is a real chance that the applicant will face harm if she returns to Vietnam, now or in the reasonably foreseeable future, as a result of loan sharks seeking repayment of her husband's debts.
Family violence
A threat to kill is a threat to life under s5J(5)(a) and the physical assaults the applicant described amount to significant physical ill-treatment of the person under s5J(5)(c). I therefore accept that the harm she faces from her husband amounts to serious harm.
The main issue is whether there is a real chance of serious harm to the applicant. In view of my findings above, I accept that her husband remains motivated to harm her despite the length of time they have now been separated. I have taken into account: the long history of his violence towards her; the fact that he lives with her youngest daughter; that she is in contact with all her daughters twice weekly and that he regularly hears news of her from them. I have also had regard to her desire to divorce him and his refusal to agree to a divorce; his view that she is a sinner because she separated from him; and, most significantly, his threat to kill her. While the applicant’s daughters are all adults and there would be no grounds to contact her husband in relation to custody, if she were forced to return to Vietnam she would contact her daughters and grandchildren and he would learn of her whereabouts. For these reasons, I find there is a real chance that the applicant will suffer serious harm from her husband if she returns to her home [district], now or in the foreseeable future, for the purposes of s5J(5)(b).
Refugee reason, essential and significant reason[3]
[3] Paragraphs 49-51 are adapted from AAT 1708615, 30 August 2022 (Member, now Senior Member, A Murphy). That case related to domestic and family violence in Malaysia. I consider them to represent a succinct and incisive analysis of the dynamics of domestic violence in the context of Australian refugee law and adopt them here, noting that I have considered the country information on Vietnam in reaching this conclusion.
I consider that the coercive, controlling and violent behaviour that the applicant has experienced from her husband constitutes family violence, a complex and pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. Family violence often takes place between intimate partners, but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. While family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[4]
[4] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
I am satisfied that the violence directed at the applicant by her husband has its genesis in his beliefs about the role and status of women and his perceived right to dominate and control the applicant because of her gender. DFAT reports such attitudes and behaviours are prevalent throughout Vietnam and that ‘many people did not see violence against women in the home as a crime or, at least, considered it a private matter that should be resolved between the victim and the perpetrator.’[5]
[5] DFAT 2025, 3.135.
For these reasons I consider that the harm the applicant fears from her husband is directed at her for the essential and significant reason her membership of the particular social group ‘women in Vietnam’. I consider that the group of ‘women in Vietnam’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. Therefore I am satisfied that the harm she fears is for reason of her membership of a particular social group for the purpose of s 5J(1)(a).
Harm in all areas
However, I do not accept that harm the real chance of persecution relates to all areas of Vietnam as required by s 5J(1)(c). In making that assessment I note DFAT’s advice that, as at the most recent census in 2019, Vietnam’s estimated population was 96.2 million. DFAT assesses that the ability of women escaping domestic violence to relocate ‘depends on individual circumstances, including financial resources and support networks.’[6] The applicant has been living and working in Australia since 2021 and has not been in direct contact with her husband since 2019. I accept that her husband will be able to find the applicant in [District]; however, I do not accept that her husband would have the capacity to locate and harm her if she were to relocate to Ho Chi Minh city, for example, as she did before she departed for Australia.
[6] Ibid 3.138.
For these reasons the applicant does not meet the criteria set out in 5J(1)(c).
Conclusion on refugee criterion
Having considered the applicant’s claims individually and cumulatively, I do not accept that the real chance of persecution to the applicant relates to all areas of Vietnam. Therefore I find that the applicant does not have a well-founded fear of persecution.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Real risk of significant harm
For the reasons set out above, I accept there to be a real chance that the applicant will face serious harm from her husband if she returns to her home in [District], now or in the reasonably foreseeable future. For the same reasons, I accept there to be substantial grounds for believing that there is a real risk she will face significant harm from her husband as a necessary and foreseeable consequence of being removed from Australia to her home in [District], Vietnam.
I consider that such harm would include ‘cruel or inhuman treatment or punishment’ as defined in s5(1) of the Act.
Relocation
There is taken not to be a real risk of significant harm to the applicant if it would be reasonable for her to relocate to an area of the country where she would not be at real risk of significant harm: s 36(2B)(a).
I found above that the risk of harm to the applicant is limited to [District], Bac Lieu province. Accordingly, I have considered whether it would be reasonable for the applicant to relocate elsewhere in Vietnam.
The applicant’s personal circumstances mean that it would not be reasonable for her to relocate to another area within Vietnam for the following reasons:
·   the increased stigma she would likely face as a single/separated woman and a victim-survivor of domestic violence and her lack of family support outside of [District];
·   the difficulty that the applicant would face in finding paid employment, noting that the applicant is aged [Age], finished school at year 5 of primary school, and her work experience is limited to farm and [workplace] work;
·   her work in the informal sector, combined with an extended absence from Vietnam, may preclude her from accessing public services such as social and household health insurance, welfare service and the pension; and
·   the fact that she is traumatised by her past experiences at the hands of her violent husband in the context of an acute shortage of mental health professionals and lack of mental health or other support services for family violence survivors in Vietnam.
Accordingly, I find that s 36(2B)(a) does not apply to her.
State protection
The Tribunal is not satisfied that the applicant could obtain protection from the Vietnamese authorities, such that there would not be a real risk that she will suffer significant harm.
According to DFAT’s 2025 Report, most instances of gender-based violence (including domestic violence) go unreported in Vietnam. Victims may feel shame or guilt, or fear stigma by authorities and society and, with it, a loss of face for themselves or their families.[7] This fear is compounded by police attitudes to gender-based violence. In-country sources indicated that Vietnamese police officers are overwhelmingly male, tended to blame and shame the , avictim, would sometimes lack sensitivity and may not understand, or appropriately apply, laws and policies relating to domestic violence.[8] DFAT assesses that while state protection exists and is improving for women experiencing domestic violence, cultural factors and lack of policy training and capacity can reduce its effectiveness and/or can place individuals at further risk of violence, particularly in rural areas.[9]
[7] DFAT 2025 3.134-3.135.
[8] Ibid 3.136.
[9] Ibid 3.138.
I accept the applicant’s evidence about her previous report of her husband’s violence to the commune and its failure to respond except with an oral warning. Coupled with the country information, this leads me to conclude that the applicant would not be able to obtain sufficient protection from the Vietnamese authorities, such that there would not be a real risk that she will suffer significant harm from her husband.
Therefore, s 36(2B)(b) does not apply to her.
Risk not faced by population generally
I am satisfied that the real risk faced by the applicant is one faced by her personally and not faced by the population of the country generally. Therefore s 36(2B)(c) does not apply to her.
Conclusion on complementary protection
For these reasons I am satisfied that 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.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
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)(aa) of the Migration Act.
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.
…