2120085 (Refugee) - [2025] ARTA 1518

2120085 (REFUGEE) [2025] ARTA 1518 (30 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Kate Hoang
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2120085

Tribunal:General Member L Hill
Date:30 April 2025

Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders that the applicants (first named applicant and second named applicant) meet s 36(2)(a) of the Migration Act.

Statement made on 30 April 2025 at 4:23pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – Viet Tan activities in Australia – online activities – particular social group – single mother – fear of detention – returned asylum seeker – physical assault – detention – lengthy stay in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644

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 decision made by a delegate of the Minister for Home Affairs on 22 December 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Vietnam, applied for the visas on 3 December 2020. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
The first named applicant appeared before the Tribunal on 24 March 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 applicants were represented by Ms Kate Hoang in relation to the review.
BACKGROUND
The first named applicant is [an age]-year-old single female. She arrived in Australia [in] December 2012 on a [Student] visa. The first named applicant has provided to the Department a copy of the biographical/biodata page of her Socialist Republic of Vietnam passport. The second named applicant is [an age]-year-old child who was born in Australia on [date]. She the biological child of the first named applicant. A copy of the second named applicant’s Australian birth certificate has been provided to the Department.
Evidence before the Department
The applicants lodged their application for protection visas with the Department of Home Affairs (the Department) on 3 December 2020. In summary, in the attached statement to the application for protection visas (‘2020 statement’), the first named applicant claimed that:
·She is seeking protection, so she does not have to return to Vietnam.
·She has not experienced any harm in Vietnam. Nor has she had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2120085 (Refugee)

Details

AGLC: 2120085 (Refugee) [2025] ARTA 1518
Case: [2025] ARTA 1518
Decision Date: 30 April 2025

CaseChat Overview and Summary

The applicants, a single mother and her child, sought protection visas from Australia, claiming that their return to Vietnam would result in serious harm due to the mother's status as a single mother and her past political activities. The Tribunal examined whether the applicants met the criteria for refugee status under the Migration Act, particularly focusing on the mother's fear of persecution and the child's fear of separation and detention. The legal issues revolved around whether the mother and child had a well-founded fear of persecution based on the mother's political activities and social status, and whether the Vietnamese government would provide effective protection.

The Tribunal considered country information indicating that single mothers in Vietnam face societal stigma and lack government support. Additionally, the mother's past activities associated with a political group raised concerns about potential harassment or detention upon return. The Tribunal concluded that both the mother and child faced a real chance of persecution due to the mother's political history and social status. The Tribunal found that the mother's activities and her status as a single mother would expose them to significant harm, including harassment, interrogation, and potential detention. The decision also noted that effective protection measures were unavailable in Vietnam for the mother's political activities and the child's familial relationship.

The Tribunal determined that the applicants met the criteria for refugee status as they had a well-founded fear of persecution if returned to Vietnam. The decision was made to set aside the original decisions and remit the applications for reconsideration, acknowledging the applicants' eligibility for protection visas.

Orders

Orders of the court

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Background

Background to the litigation

The applicants were represented by Ms Kate Hoang in relation to the review. BACKGROUND The first named applicant is [an age]-year-old single female. She arrived in Australia [in] December 2012 on a [Student] visa. The first named applicant has provided to the Department a copy of the biographical/biodata page of her Socialist Republic of Vietnam passport. The second named applicant is [an age]-year-old child who was born in Australia on [date]. She the biological child of the first named applicant. A copy of the second named applicant’s Australian birth certificate has been provided to the Department.Evidence before the Department The applicants lodged their application for protection visas with the Department of Home Affairs (the Department) on 3 December 2020. In summary, in the attached statement to the application for protection visas (‘2020 statement’), the first named applicant claimed that:·She is seeking protection, so she does not have to return to Vietnam.·She has not experienced any harm in Vietnam. Nor has she had to move to another part of the Vietnam to seek safety.·She had come to Australia to study at university. She was the first one from her family to do this and they wanted to come and visit her. She never fitted in at university and found the language hard to understand. ·[Later], she met a boy ([Partner A]) who she fell in love with. They made plans to make a life in Australia. She fell pregnant but did not tell her parents.·Three months after the birth of the second named applicant, [Partner A] (‘former partner’) left. He took all his belongings and left. She did not know why he left.·When the second named applicant was approximately [age], she told her parents she had a child. Her family rejected the idea that she was a single mother and un-wed. Her father threatened her and told her never to return. She begged to return home but they refused her pleas. She stated that as a single mother in Vietnam she will be viewed and treated as a lower class. She will be shunned by society. The government will also not provide her with any support. There are no support packages or safe houses for people like her. As her family has disowned her, she is afraid that the neighbours will find out and judge and mistreat her. Everywhere she goes she will be known as a single mother. She believes her and the second named applicant will be bullied. She has no money and if her parents don’t take her in, her and the second named applicant will be homeless and will have to live on the streets. She is scared that on return, things will happen to her daughter, the second named applicant. The second named applicant only knows life in Australia. She will not understand why people are mean to her, why her mother cannot find work or why the children at school are laughing at her. The schools will also treat the second named applicant harshly because she doesn’t have a father. She fears on return to Vietnam, they will be mistreated, abused, threatened and homeless. They will not be protected by anyone. She fears for hers and the second named applicant’s life. She does not want to return as she needs to protect the second named applicant from a society that mistreats, and judges’ people like them. She does not think that the authorities of Vietnam will protect her on return.

Evidence

Evidence Before The Court

The first named applicant is [an age]-year-old single female. She arrived in Australia [in] December 2012 on a [Student] visa. The first named applicant has provided to the Department a copy of the biographical/biodata page of her Socialist Republic of Vietnam passport. The second named applicant is [an age]-year-old child who was born in Australia on [date]. She the biological child of the first named applicant. A copy of the second named applicant’s Australian birth certificate has been provided to the Department.Evidence before the Department The applicants lodged their application for protection visas with the Department of Home Affairs (the Department) on 3 December 2020. In summary, in the attached statement to the application for protection visas (‘2020 statement’), the first named applicant claimed that:·She is seeking protection, so she does not have to return to Vietnam.·She has not experienced any harm in Vietnam. Nor has she had to move to another part of the Vietnam to seek safety.·She had come to Australia to study at university. She was the first one from her family to do this and they wanted to come and visit her. She never fitted in at university and found the language hard to understand. ·[Later], she met a boy ([Partner A]) who she fell in love with. They made plans to make a life in Australia. She fell pregnant but did not tell her parents.·Three months after the birth of the second named applicant, [Partner A] (‘former partner’) left. He took all his belongings and left. She did not know why he left.·When the second named applicant was approximately [age], she told her parents she had a child. Her family rejected the idea that she was a single mother and un-wed. Her father threatened her and told her never to return. She begged to return home but they refused her pleas. She stated that as a single mother in Vietnam she will be viewed and treated as a lower class. She will be shunned by society. The government will also not provide her with any support. There are no support packages or safe houses for people like her. As her family has disowned her, she is afraid that the neighbours will find out and judge and mistreat her. Everywhere she goes she will be known as a single mother. She believes her and the second named applicant will be bullied. She has no money and if her parents don’t take her in, her and the second named applicant will be homeless and will have to live on the streets. She is scared that on return, things will happen to her daughter, the second named applicant. The second named applicant only knows life in Australia. She will not understand why people are mean to her, why her mother cannot find work or why the children at school are laughing at her. The schools will also treat the second named applicant harshly because she doesn’t have a father. She fears on return to Vietnam, they will be mistreated, abused, threatened and homeless. They will not be protected by anyone. She fears for hers and the second named applicant’s life. She does not want to return as she needs to protect the second named applicant from a society that mistreats, and judges’ people like them. She does not think that the authorities of Vietnam will protect her on return.

Decision

Reasons for decision

In summary, the country information above, confirms that a birth certificate is required to access government services for children, including healthcare and education. Household registration is required to obtain a birth certificate. DFAT reports that applications for birth registration of a Vietnamese child born overseas can be processed through the relevant diplomatic or consular mission in the relevant country. Notwithstanding this, there is also information that people with actual or imputed links to dissident or political groups may be denied entry to Vietnam and/or prevented from departing Vietnam. Activists and state critics may be prevented from leaving for abroad, including through the non-issuance of new passports and confiscation of current passports.[13] Moreover, it has been reported that in the past, the four children of two Vietnamese failed asylum seekers, who were sentenced to three years imprisonment, were to be sent to an orphanage, in circumstances where the extended family could not afford to care for them. A last-minute reprieve spared the Vietnamese mother from imprisonment, enabling her to care for her children until her husband’s release.[14][13] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Vietnam (Report, 19 February 2025).[14] Mai Hoa Pham and Shirley Glaister, ‘Turned back by Australia, this family had detailed its ‘crushing’ journey to asylum’, SBS Vietnamese (online, 7 December 2023) <>For the reasons set out above, the Tribunal has accepted that the first named applicant, the second named applicant’s biological mother, faces a real chance of questioning, harassment, surveillance, interrogation, and may be arrested and charged with a crime under Vietnamese law and imprisoned on return to Vietnam. Given the circumstances of this case, and the country information above, the Tribunal finds, the second named applicant faces a real chance of separation from her sole care giver or detention alongside her mother, the first named applicant on return to Vietnam. The Tribunal is satisfied that this would amount to serious harm of the kind contemplated by s 5J(5).Having regard to s 5K, the Tribunal finds that the second named applicant would face persecution for the essential and significant reason of her membership of a particular social group consisting of family and that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)). In this case, the persecution of the second named applicant is not because the Vietnamese state believes the second named applicant has the same political opinion as her mother, but rather, she will be persecuted because of her relationship to her mother. Having regard for the country information above, in this case, given that the persecutor would be the Vietnamese state, the Tribunal finds that effective protection measures are not available to the second named applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Vietnam (s 5J(1)(c)). Finally, s 5J(3) requires a decision maker to consider what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal finds that it would not be reasonable for the second named applicant to take steps to modify her behaviour, as to do so would require her to change or conceal an innate characteristic, that being her familial relationship to her mother, the first named applicant: s 5J(3)(b). It follows, that the Tribunal finds that there are no reasonable steps which the second named applicant could take to modify her behaviour to avoid a real chance of persecution in Vietnam.For the reasons given above, the Tribunal finds that the second named applicant has a well-founded fear of persecution should she return to Vietnam, now or in the reasonably foreseeable future. ConclusionFor the reasons given above, the Tribunal is satisfied that each of the applicants (first named applicant and second named applicant) are persons in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).DECISIONThe Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that the applicants (first named applicant and second named applicant) meet s 36(2)(a) of the Migration Act.Date of hearing: 24 March 2025Representative: Ms Kate HoangATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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