2120217 (Refugee) - [2025] ARTA 1958

2120217 (REFUGEE) [2025] ARTA 1958 (17 JULY 2025)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2120217

Tribunal:Carolyn Graydon
Place:Melbourne
Date:17 July 2025

CORRIGENDUM
Date of Corrigendum:25 September 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the decision and the statement of reasons for the decision:
The decision date on the cover page of the Decision and Reasons for Decision is altered to read: 17 July 2025.
Statement made on 25 September 2025 at 9:44am
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2120217
Tribunal:General Member C Graydon
Date: 17 July 2027

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

Statement made on 17 July 2025 at 6:49pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – rural Vietnamese women married to violent, debtor husbands – victim of family violence – victim of loan shark – homelessness – physical assault – threats of killing – employment – return visit to Vietnam – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 21 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
On 30 December 2021 the applicant applied for review of the delegate’s decision. On 14 October 2024 the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared briefly before the Tribunal on 15 May 2025 by telephone with the assistance of an interpreter in the Vietnamese and English languages, after the applicant had been unable to join by video conference. The applicant requested that she be able to attend a hearing in person and requested assistance to be put in touch with free legal providers to assist her with her case. The Tribunal adjourned the hearing and provided a referral to a provider of free legal assistance.
The applicant appointed Victoria Legal Aid to assist her and further evidence and legal submissions were submitted on her behalf.
The adjourned hearing resumed on 18 June 2025. The applicant was present along with her legal representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant’s representative requested the opportunity to provide further submissions after the hearing which was granted and further submissions were received on 30 June 2025.
BACKGROUND
The applicant claims to be [an age]-year-old woman from Thong Nhat District, Dong Nai Province, Vietnam. She applied for a protection visa on the basis that she feared family violence from her husband and in-laws and threats from debt collectors, or ‘loan sharks’.
The evidence she provided in support of her case is set out below.
Evidence before the Department
Information provided in the applicant’s protection visa application
In her protection visa application the applicant said she was born in [specified year] in Thong Nhat District, Dong Nai Province, Vietnam. Her mother continues to live in Vietnam and her father has passed away. She is married and faced violence from her husband and his parents. The self-managed business she worked in from [year] until when she left in 2020, ran into difficulties and they had many creditors. She had to continually move around to avoid threats from creditors and go overseas to work to pay creditors. She had no where to go or to live and also feared violence from her husband and his family and had to hide from them.
She also submitted a copy of her Vietnamese passport issued in [Australia] with an expiry date [in] 2020 in support of her application.
The applicant was not offered an interview by the Department.
The delegate refused the applicant’s application on the basis that she could access effective state protection regarding her fear of family violence and regarding her fear of debt collectors and therefore was not owed protection obligations either as a refugee or under complementary protection criteria.
Evidence before the Tribunal
The applicant lodged her application for review of the delegate’s decision on 30 December 2021. On 13 March 2025 the Tribunal advised the applicant that her case had been constituted to a Tribunal Member and requested further information in anticipation of the case soon being listed for hearing.
On 29 April 2025 the applicant was invited to attend a hearing before the Tribunal on 15 May 2025. The applicant did not respond to the Tribunal’s hearing invitation, however she appeared at the time and date of her scheduled hearing.
Applicant’s evidence at the Tribunal hearing on 15 May 2025
The applicant attended the first hearing by telephone as she was unable to manage attending via a video link, as per her hearing invitation. She asked if she could attend her hearing in person. I confirmed that this could be arranged and also asked if she had considered seeking legal assistance as she may be eligible for a specialist free legal service. She said she was not aware of the role of a representative or the existence of any free legal services. She explained that she does not speak English and would find it difficult to contact a provider herself. She asked if the Tribunal could assist her to be put in touch with such services. I explained that the Tribunal could contact the services on her behalf providing she consented to this. She consented and the hearing was adjourned to a later date after the applicant had an opportunity to appoint a representative if she wished.
Pre-hearing submissions
On 4 June 2025 the applicant informed the Tribunal that she had appointed Victoria Legal Aid as her representative.
On 13 June 2025 the applicant’s representative submitted to the Tribunal a statutory declaration by the applicant dated 6 June 2025 and a legal submission. The applicant’s claims made in her statutory declaration are set out below:
3.I am [age] years old and a citizen of Vietnam. I was born on [date] in the town of [Town 1], [in a named] Commune, Thong Nhat District in Dong Nai province. [Town 1] is a rural area where we would plant rice and other crops, and harvest corn, bananas and other fruit. I lived in [Town 1] until 201 O when I separated from my husband and moved to Bien Hoa in Dong Nai province.
4.I have [siblings], [named], who continue to live in   [Town 1] and work as farmers. My father passed away in 2007 and my mother is still alive.
5.My family is Catholic and I belong to the Kinh ethnicity.
6.I did not complete primary school because my family was poor and could not afford for me to continue my education. I finished school at [age] and then worked with my parents in the fields as a farmer.
7.I married my husband in 1990. My husband also grew up in [Town 1]. After I married, I continued to work on a farm and raise pigs, which I did until about 1998.
8.    My husband and I have [these children]:
•          [names and years of birth deleted].
9.I am very close to my [children] and speak with them often by phone.
10.From 2010 until the time I came to Australia in 2019, my children did not see their father often. I do not know whether they have had much contact with him since then. Sometimes my sons return to [Town 1] to visit their grandmother and I speculate they may have some contact with him then. I have not had contact with my husband since 2012 or 2013 at the funerals for my husband's parents who died a couple of months apart.
11.In 2010, I started working at a [factory] named [Business 1] in Bien Hoa, which is close to Ho Chi Minh City. I worked there until 2013 when I became unwell. I later worked as a housekeeper until 2019 when I came to Australia.
B.Family violence
12.In about 1993, my husband became physically violent and psychologically abusive towards me. This was around the time that he became addicted to gambling. On many occasions after he had won at gambling, he would go out partying with his friends. But when he lost, he would abuse me and the children. Sometimes he assaulted me. Other times, he would stab my clothes with a knife, throw trays of food, kick buckets of water over me, or force us out of the home in the middle of the night when it would often be raining heavily and we would wander the streets and have to spend the night under a tree. He would also deprive us of food, leaving us starving.
13.My husband neither worked nor did he make any contribution to domestic duties. I was left solely responsible for taking care of the family.
14.My husband's parents were also abusive. For years, my children and I lived with my husband's parents until 201O when they kicked us out of their home. A friend of mine in Bien Hoa took care of us and helped me find a job at [Business 1] where I worked until 2013. When I moved to Bien Hoa, my husband found us and caused a lot of trouble for us. He came to ask for some money and confronted me about why I took the children away without informing him or letting him know. He was ferocious in the way that he confronted me. This happened twice, so I had to move somewhere else in Bien Hoa. He then came to the [Business 1] company to ask to see me, but a guard would not let him in.
C.    LOAN SHARKS AND MY HUSBAND'S GAMBLING DEBTS
15.My husband started gambling in 1990 but he started to gamble a lot more in about 1992 or 1993. Initially, he did not lose much money. However, by about 1993 or 1994, he became addicted to gambling and started borrowing money "hourly" to the extent that he became deeply indebted to loan sharks. In Vietnam, it is common for people to borrow money "hourly", which means they promise to repay the money within an hour and, if they do not,the debt would triple. My husband had never worked and became bankrupt in 1994, because he had outstanding debts of about 500 million Vietnamese dong (VND). I do not know the number of people to whom my husband owes money.
16.In 1996, my husband fled from [Town 1] for about a week. I remained in [Town 1] to look after the children and continue farming. I do not know where he went during that week. When he came back, he left again. That year, the loan sharks coerced me into signing a document which consisted of two letters: the first letter said that I promise to repay the debt. The second letter said that I must repay the debt by instalments. I do not have a copy of the document, but I remember clearly that I had to write how much the loan sharks said that I owe. I do not know how much my husband originally borrowed. My husband's parents pressured me into taking on the debt. In my culture, wives are expected to respect and treat their husband's parents the same as their own parents and if they do not, they are shamed for it.
17.While I was in Vietnam, if I ever defaulted on a repayment, the loan sharks would come to our home and threaten to destroy it. My husband's parents scolded me if I ever fell behind in making repayments. Due to the size of the debt and my small income, I struggled to earn enough money to repay the loan and to also feed my family. The times I defaulted on a repayment, the loan sharks would come to our house and threaten me. They threatened to cut off my fingers which caused me to fear for my and our children's lives.
18.After my husband's parents kicked us out of their home in 2010, my husband told the loan sharks where I worked in Bien Hoa. The loan sharks found out where I lived and came to my work. I was under a lot of stress at the time because of the loan sharks and this caused me to miss a lot of work and, because of this, I was dismissed. During this time, I moved around within Bien Hoa, staying in the suburbs of [named suburbs]. I continued to feel unsafe.
19.I do not know the identities of the loan sharks because they are gangsters. They would send different associates to collect repayments.
20.I remain in debt and the monthly interest is about 32 million VND, or about $1,900 AUD, which I continue to pay. I pay by instalments which are due each month. If I default on a repayment (even by one day), the interest increases. Since I have been in Australia, I have not been paying the loan sharks directly. Instead, for the most part I have been transferring money to my sons who reside in Ho Chi Minh City and who make the repayments on my behalf. Occasionally, I would transfer money to colleagues who were returning to Vietnam from Australia and they would make the repayment for me. All I can afford is the interest. My sons are also coerced into making regular repayments of their own.
21.As far as I am aware, my husband has not made any repayments. I do not know where my husband is currently living. He is from [Town 1] and he is registered in that village with the government in his family book. However, it is possible he lives somewhere else. I am not sure because I have not spoken with him in a long time.
22.In the lunar new year of 2024, I was not earning an income for a time and I defaulted on a repayment. Consequently, the loan sharks threatened my sons. The loan sharks have variously threatened to kill me and my sons, including in 2024 by threatening to cut me into pieces at the airport if I ever return to Vietnam. The loan sharks do not communicate with me directly. They threaten my sons who communicate this to me over the phone.
23.My sons live and work in Ho Chi Minh City. They change address about every month in Ho Chi Minh City out of fear of the loan sharks. The loan sharks always are able to find them which causes them to have to move house. I do not know where in Vietnam that the loan sharks are based but they have wide reach within Vietnam.
D.    MY LIFE IN AUSTRALIA
24.I came to Australia in September 2019 on a tourist visa. I was financially supported to come to Australia by a friend I met while I was housekeeping. My friend emigrated to the [Country] in the 1980s. She knew of my circumstances concerning my husband and the loan sharks and she helped my children with clothing, uniform and stationery. She passed away in about 2023 from COVID-19.
25.I returned to Vietnam from about November 2019 to about February 2020 to visit my sons in Ho Chi Minh City. I did not leave Ho Chi Minh City during my visit and did not let any other family members know I was in Vietnam. At the time of my visit, my sons and I believed that the loan sharks did not know where they lived.
26.I returned to Australia in February 2020, shortly before the COVID-19 lockdowns. My tourist visa was due to expire in June 2020 and I applied to extend it until June 2021. In any event, I had to remain in Australia _during the lockdowns. Initially during the lockdown period, I took care of an elderly man who was [age] years old and he passed away after two or three months. His family members helped me find work in a local restaurant as I was not able to find any other work during that period. I was then offered a job working on a [farm] and then I got a job working for a [product 1] producer.
27.I was assisted in applying for a Protection visa by a friend I met at the church I used to attend every Sunday. I met her one day while we were waiting to go in for mass and I explained my situation to her. She was very supportive and recommended that I apply for a Protection visa, which I then did.
E.    PROTECTION FROM THE VIETNAMESE AUTHORITIES
28.If I returned to Vietnam, I do not believe that the authorities can protect me because I come from a poor family and am not well-connected, like the children of high-ranking officials are. Poor people like me do not get much help from the authorities.
29.When I lived in Vietnam, I did not contact the authorities about the loan sharks. At first, this is because there were no police in [Town 1], which is in a rural area. But also I did not think that the police would be interested in protecting me because the loan sharks' threats were verbal. They only made home visits to threaten me, but they never hit me or did anything physical to me. My husband's parents also scolded me for not making repayments so I tried to handle the situation on my own, begging the loan sharks to be flexible and to give me more time to pay the money back.
F.    RELOCATION
30.There is no part of Vietnam where I would be safe. The loan sharks know where my sons live in Ho Chi Minh City and, because of this, my sons move from place to place within that city. I could not live with my sons.
31.Even if there was a part of Vietnam I would be safe, it would not be reasonable for me to relocate there. I am an older woman and would find it hard to get a job. This is made worse by the fact that I do not have an education past primary school. This means that I would not be able to get money to pay for rent and I would also be unable to continue paying money back to the loan sharks.
20. The legal submission made by the applicant’s representative argued that:
·The applicant meets the definition of a refugee or in the alternative, is owed protection obligations under complementary protection criteria.
·Her claims to have been a victim of family violence, incurred debts on behalf of her husband, and continues to be pursued by loan sharks, are credible and consistent with available country information.
·Her claims should be accepted notwithstanding the delay in lodgement of her protection visa application, her short return trip to Vietnam following her initial arrival in Australia and despite some incorrect details being included in her initial written application and incomplete information about her protection claims being provided at that time.
·The ‘essential and significant reason’ the applicant fears harm from loan sharks is due to her membership of a particular social group, framed as ‘poor Vietnamese people’ or ‘poor Vietnamese women.’ Social groups defined by economic status, such as poverty, are valid. In particular ‘poverty’ is a largely immutable characteristic, as while there may be small number of people living in poverty in Vietnam who do manage to escape poverty, the vast majority do not and their lives continue to be defined by certain common characteristics of those living in poverty, as a recognisable social group. In the applicant’s case, her membership of this group is why she was initially saddled with her husband’s debt and then continued to be a target of loan sharks. Therefore a nexus with one of the five reasons specified in s 5J(1)(a) is met, being her membership of this particular social group.
·The applicant faces a ‘real chance’ of ‘serious harm’ due to the loan sharks being part of an organised criminal syndicate, increasing the risk of her facing harassment. She fears significant psychological harassment and ill-treatment as well as denial of a capacity to earn a livelihood of any kind, threatening her ability to subsist. The psychological toll of such extreme and routine threatened violence, the termination of her employment caused by multiple attendances of loans sharks at her workplace, in combination with her profile, including her age, gender and low level of education, are factors that may amplify the level of harm she experiences in her circumstances, constituting ‘serious harm.’
·The applicant lacks effective state protection in Vietnam due to her poor background, lack of connections and loan shark-related case, resulting in the police not considering her to be a priority or her situation sufficient serious to warrant their attention, as well as an absence of accessible police at her village level.
·In the alternative, the applicant faces a ‘real risk’ of ‘significant harm’ due to ongoing psychological harassment and threats of physical harm from loan sharks and their role in disrupting her employment opportunities and threatening her subsistence. This treatment meets the definition of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. Any state protection available to her would not bring the level of risk she faces below that of a ‘real risk,’ and the harm she faces is not one faced by the general population but rather one faced by her personally. She therefore engages Australia’s complementary protection obligations.
Evidence provided by the applicant at resumed hearing on 18 June 2025

The applicant provided evidence that was largely consistent with her statutory declaration of 6 June 2025 set out above. The applicant’s evidence as described below, is therefore limited to either new information provided or where there were clarifications provided or differences between her evidence in her statement from that provided at the hearing.
The applicant’s [children] remain unmarried and live together in Ho Chi Minh City. [Details of employment deleted].
The applicant is separated, not divorced, as the Catholic Church does not allow divorce and she wants to be a good example to her [children]. The applicant continues to practice her Catholicism in Australia. She prays and reads the bible daily and attends Church on Saturdays and Sundays. She rents a room in a share house in Australia. She works in a [product 1 factory].
The applicant does not know who her husband borrowed money from. The people demanding repayments are from the same gang but different people. She believes they are from the same gang because every time they come they demand her to pay money from the same debt.
Her understanding is that in 1993 or 1994 she owed 500 million VND (AUS29,316) being the principal loan amount, plus around 32 million VND (AUS1876) per month in interest. She knows this from when loan sharks brought with them a document which said her husband owed this amount and which she then owed this amount.
The first couple of times they visited they did not bring any paperwork, however then they did, a document asking her to take responsibility for her husband’s debt. Her husband was away at the time. The loan sharks said that if she did not pay this amount they would cause trouble to her family and her husband’s family. She was under a lot of pressure from her parents-in-law to take responsibility for the debt. She had no choice but to sign the document.
The Tribunal asked the applicant is they later brought a second document when they visited. She said they had not. Later in the hearing her representative asked a question to clarify this issue, as it was different from what the applicant had said in her statutory declaration. It was clarified that there was just the one document which both required her to take responsibility for the 500 million VND loan of her husband and which also said they may give her a few months grace period but after then she would need to commit to making regular monthly payments.
From that time on, whatever money the applicant had, she would pay to them, except for the minimum needed for the family’s survival. If she had one million VND she would pay that amount, if she had made extra that month, she would pay more. She was working as a farmer and selling the produce. Her parents-in-law’s only contribution was to provide childcare to her sons while she worked. Her husband did not contribute. He was often away, coming back and then disappearing for long periods.
The debt collectors kept coming each time she did not pay. When they came they were very aggressive and she was terrified of them. These visits made her feel very anxious. They used foul language and threatened to harm her with violence if she could not pay, including threatening to cut her arm or her leg off. They threatened that there was no point in her running away as they could find her wherever she went in Vietnam. She let them inside the house as her parents-in law were worried about the neighbours knowing about the issue and needed them to be quiet. On one occasion they pushed her over and she fell to the ground. On another occasion they kicked her table and chairs and did the same again a month or two later. She felt constantly terrified by these threats and was working to pay them to the point of total exhaustion.
Her parents were very upset about the way that her husband and her in-laws were treating her. This stress caused her father to become sick and pass away. Her parents advised her husband to be more hard working to support the children, but he did not listen to their advice.
In 2010 stopped she stopped living at her parents-in-law’s house as she was under a lot of pressure and could not stand it any longer. She initially said that she had decided to leave to care for her [children] because the loan sharks were coming all the time and behaving very aggressively. Later in the hearing, it was clarified that her departure occurred after her parents-in-law became very aggressive towards her when she had not been able to earn enough money to prevent the loan sharks from coming. They started throwing her belongings out of the house and told her and her children to move out of the house. Her husband had also earlier been telling her to leave the house around ten days prior. She left without telling him that she would take the children with her.
She moved to Bien Hoa with the assistance of a friend’s friend and she started working at the [Business 1] [factory]. She was very busy, working and looking after the children on her own. No one knew where they had gone. Her husband tried to find her and while he could not find her house, he was able to find her workplace. He turned up at the factory and the security guard refused to let him in. He did not find her house and contrary to what she had said in her statutory declaration, there were no direct angry confrontations with him at this time.
She then believes her husband told the loan sharks where she worked and then they came to the factory looking for her a few times and they did not let them come in. One day she was leaving work and she saw loan sharks waiting for her at the gate, so she did not leave. Her employer did not like the loan sharks coming to the factory and so they dismissed her. Around that time she was also sick due to all the work and stress of the loan shark visits to her workplace. The applicant clarified that neither her husband nor the loan sharks ever came to her house, but they both came to her workplace.
She last saw her husband in 2012 when her father-in-law passed away and then two and a half months later her mother-in-law passed away. She attended their funerals out of a sense of duty as they were still her parents-in-law even though her husband and them had done her wrong. She knew she would see her husband there but she did not think he would attack her there with so many people around. She had no contact with him at the funerals. She thinks her mother may have had contact with him since then, as they lived close by. She thinks her sons may have had some contact with him with too, perhaps during the lunar New Year festival when they mark the anniversary of her father’s passing and they return to her mother’s house. They may possibly see him there, although she is not sure how they communicate with each other.
During the time she lived in Bien Hoa she lived in three different locations. Once she moved because she was afraid that the loan sharks had tracked her to her house and so she pre-emptively moved as she was fearful for her safety and that of her children, plus she worried that her landlord would not be happy with loan sharks visiting. The other times she moved as she could not afford the rent.
She continued to pay the loan sharks each month after she moved to Bien Hoa. She earned around 800,000 VND per month by working 12 hours per day and tried to pay them 500,000 VND per month. She paid the money via her neighbour who was also from Lo Loi and she trusted her to take it to her parents-in-law to pay the loan sharks. She is not sure her parents-in-law did in fact pass the money to the loan sharks but she presumes they must have as the loan sharks did not visit her.
Her parents-in-law knew she was in Bien Hoa but not the exact location. The only one who knew where she lived was her father who visited them from time to time to bring food from home. She trusted her father to keep her location a secret from her husband and her parents-in-law as he knew their safety was at risk.
After she lost her job at the factory she worked as a kitchen hand in a restaurant and had a second job at nighttime working from home [duties described]. The children helped her with this work too. There was a period of around three or four months when the applicant was too sick to work and could not pay the loan shark. She said she was able to pass on a message to the loan sharks that she was sick and in hospital. They did not take action against her, although they did add the extra money she owed onto her next repayments.
She secured work as a nanny in a family who had a relative who had returned from the [Country]. This relative was very caring and when the applicant shared her situation, the relative helped pay her [children’s] annual school fees so they could keep up their enrolment and also agreed to help her leave Vietnam so she could work and address her debt issue. Her friend helped with all the arrangements: securing her passport, visa and paying for her ticket.
Since coming to Australia she has not been in contact with the loan sharks but her sons have had to take over the responsibility to make the repayments to the loan sharks. She sends money to them from Australia through a colleague when she goes back to Vietnam or through another family in Australia who pay the money to her sons. She also uses a direct money transfer service close to her house in [Suburb 1] to send her [children] money.
The loan sharks now harass her sons in Ho Chi Minh City whenever they cannot collectively meet the repayments. This happened in December 2024 when she did not have the money to pay and even when she was just one or two days late, her [children] were harassed. Her son pays the money to the loan sharks by meeting them at various locations, rather than at their house. But if they are late in paying then her [children] immediately start getting telephone calls and threats. The loan sharks have not forced her sons to sign documents taking responsibility for the loan. The loan sharks know she is overseas and they still consider her the one responsible for the debt.
Due to visits and threats from the loan sharks her [children] have had to move house around five or six times since they have lived in Ho Chi Minh City. They have also had to stay with friends for a night or two quite often when they have not been able to pay and they expect the loan sharks to be looking for them. They now live in an apartment complex which is more secure as each person has to have a card to enter or leave the complex. She is not sure if the loan sharks know where her [children] are currently living. She talks to them often by video conference but they do not tell her everything going on, as they do not want to worry her. Her [children] do not like to speak about these things and they are worried about her being alone in Australia and so they only share ‘important things.’ She knows her [children] also pay the loan sharks from their wages and not only her.
She says that according to her [children], she now owes 1 billion VND plus 30 million VND every month for interest. While back in 1993 the debt was 500 million VND, however there were some months when she could not pay and then the interest has increased the total loan amount, which has accumulated over time.
I asked the applicant how she sees this situation ending. She said that would probably die still stressed and trying to find money for them every month. The amount owed has just continued to increase despite the decades she has been work hard to make the repayments. I asked if she had ever tried to negotiate with the loan shark a fixed amount so that debt did not continue to grow. She said that her son had tried to persuade them of this, telling them that his mother was old now and could not continue working and that the salaries of [her children] was not enough to cover the amounts demanded. He asked them to accept gradual payment of the loan principal and to stop charging additional interest costs. However they told him that they did not accept the offer. She concludes that the loan sharks want them to keep paying forever.
I asked if she had ever been to the police to complain about the threats and visits by the loan sharks or for having been forced to take over her husband’s loan or the unfair interest rates being charged. She said that when a person comes from a rural area like she does, the police do not listen and do not care. I asked whether her [children] in Ho Chi Minh City had complained about the harassment they received from loan sharks. She said that as they are living there only as temporary residents, and as all their documentation relates to the village, they do not feel confident the police will do anything to help them, as they are still seen as small people from the village. They are also worried that if they do complain to the police, this could make things worse for them and that even if the police do look out for them for one day, then what about all the other days when the loan sharks can still harm them? I asked if she was aware of any organisations in Vietnam who could help negotiate with the loan sharks on her behalf. She said she was not aware of any such organisations and that she had already tried to negotiation with them, which had failed.
I asked if she was still afraid of her husband. She said ‘from the bottom of my heart I am still afraid of him. He has a hot temper and that part of his character will not change.’ I asked if she knows where he lives now. She said she did not know but that his permanent place of residence is still Lo Loi. She does not know if her mother sees him around the neighbourhood as she is very old and does not go out much.
I asked what the attitude of her [children] was towards their father. She thinks they may still have contact with him but she does not know the details. She said her [children] understand the problems that her husband has caused her and them and that they understand that he has done wrong, however they still respect him and show their feelings for him. I asked if she thought her husband would pose any direct threat to her if she returned to Vietnam. She said that with his attitude and unchanged behaviour, she is fearful of what he might do to her and that him and her are still the parents of [their children] and this might give him reason to look for her or be in touch with her. She said that if her husband knows where she is living, then that would put her in a high-risk situation.
I asked where she would live if she had to return to Vietnam. She said she does not have a house and would not be returning to her mother’s house as her husband is likely still living there. She is afraid he will see her there and she does not want her mother to be placed under any pressure. Her [children] do not have a house of their own and if any of them get married then they will be living with their own families. The apartment they rent is very small and already cramped with the three of them there and that is all they can afford.
I asked the applicant why she returned to Vietnam for around three months after she first came to Australia. She said that she had never lived apart from her children before and that she had found it very difficult to leave [them] after all they had been through together, even though they were already young adults. She worried about them being alone and she missed them so much she could not sleep. And so she decided to use the return flight of her ticket to visit them. She said that she went back to Vietnam despite her fear of her husband and the loan sharks because she missed [them] so much and she loves them. She said she did not go out but just stayed at their place and no one harassed her as no one knew she was there. She left [them] again and came back to Australia because she did not want them left with the debt and the loan shark problem, and she had a better chance of earning money in Australia to pay off the loan. While she was in Vietnam, repayments were due and so her son met the loan shark somewhere away from the house to pay them but without them knowing she was there. Her [children] were not in contact with her husband while she was there and she did not hear anything from him.
I asked the applicant if she ever had any problems in Vietnam due to her Catholic religion. She said that her religion was not a problem for her and her fears were around her husband and the mainly the loan sharks. ‘I only worry about those two things.’
The applicant’s representative made submissions that the conduct of the loan sharks indicated that an organised criminal group syndicate was involved in the applicant’s case and not a neighbourhood lender, and that consequently the risks of harm and severity of harm she faced were higher. The representative submitted that if the applicant was back in Vietnam, it is foreseeable that she would need to borrow more money to avoid threats of being killed, further deepening her situation of debt and the risks she faces. The representative also noted that the more recent DFAT report does not place emphasis upon the possibility of engaging mediators or other support services for victims of loan sharks, suggesting that the usefulness of such services in reducing risks of harm to loan shark victims have been reassessed and is not considered a viable, available option to reduce the risk of harm. The representative also submitted that the risk of responsibility for the loan being transferred to the applicant’s [children] may still fall within the definition of serious or significant harm to the applicant due to the vicarious psychological direct effects of any harm done to her sons, upon the applicant.
I indicated that I broadly accepted the credibility of the applicant’s claims as put forward by the applicant and that I also accepted that the loan sharks involved in the applicant’s case were more likely to be characterised as part of an organised gang than a neighbourhood lender. I also noted that despite threatening the applicant with physical violence for more than thirty years, the loan shark had not escalated the level of harassment and acted upon these threats and that at times when the applicant had been unable to pay, the loan sharks had demonstrated a level of flexibility. I noted that based on the previous patterns of behaviour by this particular loan shark, the Tribunal had to consider whether, assuming the level of psychological and economic harm previously experienced by the applicant remained at a similar level in the future, this would constitute either ‘serious harm’ or ‘significant harm’ as each is defined under the Act.
The representative indicated that they would like the opportunity to further address the Tribunal on this and other points, and so I agreed to accept any further information or submissions up to until the 30 June 2025.
Post hearing submissions
On 30 June 2025 the applicant’s representative submitted a further legal submission making the following arguments:
There is no requirement that a level of harm be physical in its nature in order to engage Australia’s protection obligations. Several non-physical forms of harm are specifically provided for in s 36(2A) of the Act and the level of harm previously experienced by the applicant, which is anticipated to continue on her return to Vietnam, does clearly meet both a ‘serious’ or ‘significant’ harm threshold. The submission continued:
…the nature and duration of the threats, considered together with the applicant’s circumstances and vulnerabilities, necessarily involve the infliction of severe mental pain and suffering (or, conversely, mental pain or suffering which in all the circumstances could reasonably be regarded as cruel or inhuman in nature). As such, and having regard to the fact the illegal moneylenders’ tactics are clearly indicative of a subjective intention to inflict significant harm on the applicant, we submit that there is a real risk the applicant will face significant harm, namely, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. [1]
[1] Representative’s submission, 30 June 2025, [2.4].

The representative also submitted that the applicant’s circumstances, being subjected to a pattern of conduct designed to coerce her into making repayments without any endpoint, was a situation akin to ‘debt bondage’. While she was not bonded, as such, directly to her creditors, the fruits of her labour were, through their continuing threats and pressure upon her sons. As debt bondage is a recognised form of contemporary slavery, this also underlines the argument that the applicant is a member of a particular social group, being people living in poverty, because poverty is a known key driver of debt bondage.
The representative also reminded the Tribunal of its obligation to consider the applicant’s claims cumulatively and taking into account her specific profile and vulnerabilities.
…a series of lesser harms which each are not ‘significant’ may, cumulatively, rise to this threshold. We respectfully remind the Tribunal that the applicant is an older woman who has had a difficult life, including as a victim of domestic violence, and submit that this, together with her gender, status as a single mother, and age, all mean that she is particularly vulnerable.[2]
[2] Ibid, [2.17].
The representative also submitted that the Tribunal could not make any assumption that the loan sharks would afford the applicant any flexibility in arrangements for making repayments given the young average age of people in gangs and therefore the high ‘turnover’ of the people running loan shark gangs means it cannot be assumed there will be any continuity in approach taken in the future. Moreover, any such flexibility shown to her, would only act as a ‘band-aid’ and not address the root cause of the harm, being the debt that she owes, which would likely further increase even if arrangements to reduce repayment amounts were agreed to by the loan shark.
The representative also submitted that no assumption could be made by the Tribunal that the loan sharks would transfer responsibility of the debt from the applicant to her sons, thus reducing the risk or severity of harm done to her. In any event, the harm caused to her sons through such debt being transferred to them, would still constitute a form of vicarious psychological harm upon the applicant, which would be experienced particularly acutely given her close emotional ties based on the history of the applicant’s struggles to protect her sons from the many forms of harm they had faced over the decades.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Vietnam for reasons of her race, religion, nationality, membership of a particular social group or political opinion. Alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be set aside.
Applicant’s country of reference
The applicant has consistently claimed to be from Vietnam and has submitted a passport issued by the Government of Vietnam. There are no concerns before me regarding the applicant’s identity or nationality. I am satisfied that the applicant is a citizen of Vietnam. There is no information before me that the applicant would have a right to enter and reside in any other country except for Vietnam. I find that the applicant’s ‘receiving country’ is Vietnam and I have assessed her claims against that country.
Credibility of the applicant’s claims
Return visit to Vietnam
The applicant first arrived in Australia in September 2019 and then returned to Vietnam in November 2019 for a period of around three months. She explained that she returned to Vietnam despite her fears of harm from her husband and from the loan sharks, as her and her sons had found the separation difficult to endure as they were very close and had never been separated before. I accept that the applicant’s personal history indicates that she has frequently put her family members’ interests ahead of her own and that she may well have still held real fears for her own safety but been willing to take some degree of risk to return to see her sons. I also accept her evidence that she took steps to reduce any risks she faced during her visit by mainly staying at home in her son’s accommodation, avoiding any involvement in the loan repayment arrangements and ensuring her sons had no contact with her husband, while she was there.
Delay in lodging protection visa application
Having arrived back in Australia in February 2020, I note that the applicant applied for a protection visa almost 18 months later, in late July 2021. She claims she was not aware of protection visa applications and that she did apply soon after becoming so aware. I accept that this period coincided with when all parts of Australian society were dealing with the implications of the COVID-19 pandemic and the high levels of movement restrictions in place. I accept this likely resulted in social isolation of the applicant and restricted the flow of information to her about her possible visa options, except perhaps for those that were the focus of public information campaigns related to extension of some visa arrangements due to the restrictions on air travel. I note that the applicant did extend her visitor visa during this period and remained on that visa until just a short time before she lodged her protection visa application. I find it is quite plausible that for these reasons the applicant did not have had access to information about protection visas until around the time when she applied. Therefore her explanation for not applying earlier for protection is reasonable and I draw no adverse inference that this delay may therefore indicate she lack a subjective fear of return to Vietnam.
New information
I note that s 367A of the Act requires me to draw an adverse inference to the credibility of claims or evidence not raised before the primary decision-maker unless the applicant has a reasonable explanation for not having done so. I note that the applicant’s protection claims in the form are very brief and lack detail, however they do still convey the essence of her claims to fear harm due to loan sharks and issues of family violence from her husband and his family. The essence of her claims has not changed, mainly the level of detail of her claims and some incorrect information regarding her previous employment was also corrected at the review stage.
I note that her protection visa application form states that no assistance was provided to her in completing the form and that no interpreter was used to prepare the form. Yet the applicant’s evidence was that a friend assisted her, which I accept, as even now, I assess it would be difficult for the applicant to complete the form without assistance to the level it was completed, due to her lack of English language proficiency. I therefore accept the applicant’s evidence that a friend assisted her with the form and as the friend was not a migration agent or other qualified person, I accept that errors in completing some fields of the form could well have been made. I also accept that the friend did not provide the applicant a copy of her completed application, making it especially difficult for her to later detect any errors or gaps in the information provided. I note that the Department did not offer the applicant an opportunity to be interview, which would have provided an earlier chance for her to provide any details of her claims and to correct inaccurate information. For all these reasons, I therefore accept the reasonableness of the applicant’s explanation for her providing additional and corrected details regarding her claims at the review stage of the process, and that therefore s 367A does not apply.
I also note that while there were some points of the applicant’s evidence at the hearing that diverged somewhat from what she said in her statutory declaration, I accept that these issues were satisfactorily resolved at the hearing and that they did not raise for me credibility concerns regarding those claims. I accept there is a need and obligation to make reasonable allowances for the fact that many of the events relating to the applicant’s case occurred a long time ago, given how the passage of time may impact on memory and the inherent risks of misunderstandings arising when evidence is given via interpreters, notwithstanding their professionalism.
I have also given regard to the longstanding principle governing refugee status determination that the special situation of asylum seekers often may mean they should not be required to produce all necessary material to corroborate their claims.[3] This is highly relevant in this case, noting there is limited evidence, other than the applicant’s oral evidence, corroborating key claims she has made. Additionally, I have had regard to relevant judicial authority on the issue of findings on credibility in this context,[4] and note that many of these principles of the allowances which should be provided, are reflected in the former Administrative Appeal Tribunal’s Migration and Refugee Division’s Guidelines on the Assessment of Credibility.[5]
[3] UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, at [10]. See also: UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, at pp 43-44.
[4] Including: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [192] and Kirby J at [211]; Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 per Hely J (these comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Kirby J at [7]; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 per Foster J at [26].
[5] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, July 2015.
Appraising the applicant’s evidence against a backdrop of these considerations, I found the applicant’s evidence at the hearing to be frank and natural, with no indication of having been rehearsed or coached. The applicant provided a credible level of detail in her accounts of her background and experiences, including regarding incidents relating directly to her protection claims. Her evidence was to a large degree both internally consistent, consistent with the evidence provided in her statutory declaration and plausible when read against relevant country information.
Findings of fact
Based on this assessment, I accept the following claims made by the applicant:
·The applicant comes from a poor farming background. She married when she was [age] years old a man who used family violence against her and their children, who incurred large gambling debts, and who throughout their married life made minimal contributions to supporting her or their [family]. I accept that the applicant has experienced long-term physical, psychological and economic abuse by her husband. The applicant also suffered protracted psychological and economic abuse by her parents-in-law.
·In around 1993 or 1994, the applicant’s husband incurred gambling debts to informal lenders who turned out to be loan sharks, amounting to around 500 million VND. When the loan sharks were unable to find him husband or compel him to make repayments, the applicant was coerced by culturally ascribed duty to her husband and pressure from his parents, to accept responsibility for his loan.
·From that time until the present, she has been trapped in a cycle of unmanageable debt due to the ever-increasing interest rates charged on the loan and her inability to pay off any of the principal. As of the current time, the loan has reached around 1 billion VND and the applicant is expected to pay interest of around 30 million VND per month, which she has done since coming to Australia.
·For more than 25 years, the applicant faced constant visits and harassment by the loan sharks demanding money. They were always verbally aggressive towards her and threatened to use physical violence against her, including by cutting off her arms and legs. On one occasion they pushed her to the ground and on other occasions they used violence against her property. Their threats and visits left her in a constant state of anxiety and terror and she feared she would be unable to make repayments and protect herself and her children. She worked doggedly to earn more money through her farming and then later through working multiple jobs to meet repayments.
·In 2010, her husband and parents-in-law forced her to leave their house. She moved with the children to Bien Hoa and worked in a factory. Her husband found out her place of work and attempted to enter but was prevented by security staff. Soon after, the loan sharks visited her place of work searching for her. They visited multiple times. Her employer terminated her employment due to these visits. She was fearful the loan sharks had tracked her to her house and so she pre-emptively moved houses to avoid them finding her. She kept the location of her house a secret from everyone except for her father who visited her and the children sometimes. Throughout this period, she continued to send money via an intermediary to her parents-in-law to pay the loan sharks.
·Since her arrival in Australia she has continued to send money to her sons to maintain the repayments to the loan sharks. During periods when she has been unable to pay, loan sharks have visited and threatened her sons. Since her departure, her sons have had to move house around five or six times and stay with friends from time to time, in order to avoid the loan sharks who continue to threaten them with violence if payments are not met.
·The applicant sees no way out of this debt and remains very fearful of the loan sharks resuming their campaign of threats against her if she returns to Vietnam.
·She remains married to her husband, as she is Catholic. While she has had no contact with him for many years, she remains fearful of him due to his history of violence and his known temperament. Her sons and possibly her mother remain in touch with him and she believes that he continues to live in [Town 1], where they both grew up.
Does the applicant satisfy the refugee criterion for protection?
Does the applicant face a real chance of serious harm?
I accept that the applicant has previously suffered treatment amounting to prior persecution and that aspects of this treatment continue to date, despite her being outside of Vietnam for some years. I note that determining what is likely to occur in the future also require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what may happen in the future.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 573.
I accept that the applicant has faced persistent physical, psychological and economic violence by her husband. The fact that she continues to suffer from his debt indicates that his use of economic violence against her continues to the current date. She has also endured a course or pattern of intense threats and harassment by loan sharks for more than 25 years, which have been used against her in a purposive way to terrorise her into working long and arduous jobs in order to make repayments. I accept that the applicant has been, and continues to be, in a form of bonded debt, which continues to place her under intense pressure, even while she is outside of Vietnam, as she tries to maintain repayments to shield her [children] from the continuing harassment and threats from loan sharks.
In terms of the applicant’s fear of loan sharks upon her return to Vietnam, I note that there has been no gap in the loan sharks’ continuing demands for payments, despite her being in Australia for more than five years and that the loan sharks continue to use her [children] as leverage to coerce her into maintaining her repayments from Australia. I also note that the applicant’s [children] live in Ho Chi Minh City, where, according to DFAT, loan sharks are known to be particularly active.
According to in-country sources, as of October 2023, loan sharks were most prevalent in Ho Chi Minh City and other southern provinces, and more ‘hidden’ in Hanoi, where, as the administrative capital, security was tighter.[7] [Emphasis added]
[7] DFAT Country Information Report Vietnam, 19 February 2025, [3.176].

This leaves me in little doubt that the risk of the loans shark continuing to pursue her for money, if she did return to Vietnam, is almost certain. They would likely also assume she has access to money or may be able to access funds from others, having spent a substantial period in Australia, compounding her risk profile. I have considered the applicant’s history of being threatened and harassed by loan sharks and how, in her absence, they have transferred their attention to her [children] since her departure from Vietnam. I have also considered the country information provided in the 2025 DFAT report, regarding different categories of unofficial money lenders in Vietnam and the differing risks they may pose to debtors.
According to the United Kingdom’s Home Office, unofficial moneylending services may also be provided by neighbourhood money lenders, which were less likely than criminal syndicates to charge high interest and employ harassment to recoup debts…[8]
There is a potential for reprisals for unpaid debts, particularly where the creditor is an organised criminal syndicate. According to in-country sources, speaking in October 2023, reprisals might be carried out by individuals hired by creditors to exert pressure on debtors, rather than by the creditors’ themselves (some loan sharks had established legitimate debt collection companies to pursue unpaid debts). Reprisals can take various forms, ranging from psychological pressure and public embarrassment to intimidation and violence, although in-country sources said violence was not typically used. Specific reprisals may include property damage, asset seizures, playing of loud music outside debtors’ homes, and sending funeral wreaths to their homes or workplaces. While the use of violence was not common, the disruption to a debtor’s life – and associated psychological pressures – was sometime acute. In-country sources reported instances of creditors or their contractors moving into a debtor’s home, including eating their food, until the debt was repaid in part or in full. Debtors’ family members may also face verbal and physical harassment and threats[9]…
DFAT assesses people who owe money to loan sharks do not face official or societal discrimination, with harassment from money lenders mitigated through relocation. When money is borrowed from criminal syndicates, particularly large, organised syndicates, the risk of harassment even after relocation may remain high. When money is borrowed from smaller, community-based lenders, the risk of harassment following relocation is lower. While it cannot be discounted entirely, DFAT assesses the risk of violence for the purpose of recovering unpaid debt to be low overall. The risk of violence may increase where the debtor seeks to consistently evade the creditor, or larger scale criminal syndicates are involved.[10] [Emphasis added]
[8] DFAT Country Information Report Vietnam, 19 February 2025, [3.176].
[9] Ibid, [3.177].
[10] Ibid, [3.183].
Reflecting on this country information and how it relates to the applicant’s evidence, given the highly persistent pattern of behaviour by the loan sharks in pursuing the applicant over decades and across multiple locations, (in [Town 1], Bien Hoa and now in pursuing her [children] in Ho Chi Minh City), it seems most likely that loan sharks involved in her case are not local ‘neighbourhood lenders’ but rather part of an ‘organised criminal syndicate’ of money lenders. I therefore accept that this places the applicant in a higher category of risk, both in relation to the likelihood, and the potential severity, of the ongoing harm that she faces from loan sharks in the future.
I also recognise that if the previous pattern of harassment and threats were to continue at a similar level upon her return to Vietnam, then I accept that this pattern of systematic treatment amounts to intense psychological harm against the applicant and therefore constitutes ‘serious harm’ notwithstanding that the loan sharks have never followed through on their threats to use physical violence against the applicant or other family members.
I find that the applicant faces a real chance of treatment amounting to serious harm in any of the three locations where she or her [family] have faced harassment by them, being her home village area of [Town 1], Bien Hoa and Ho Chi Minh City, where her [children] live and which is also the place I find she would be most likely to live, if she was compelled to return to Vietnam.
Possibility of relocation
I have considered whether the applicant would be able to find safety by relocating to another part of Vietnam. Given the loan sharks have already followed the applicant and her [children] between three different locations, I accept that the reach of the loan sharks involved in the applicant’s case goes beyond the confines of any localised geographic area. I accept that the loan sharks would likely be able to find her anywhere in Vietnam and that this means relocation is not a feasible option for her to secure her safety. I note that this also aligns with DFAT’s assessment that relocation does not provide protection from the risk on going harassment when loan sharks associated with criminal syndicates are involved.[11] I find that the applicant would face a real chance of serious harm throughout the whole of Vietnam.
Effectiveness of available state protection
[11] Ibid.
I note that s 5J(2) of the Act states that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in their country. DFAT assesses the effectiveness of state protection against loan sharks in Vietnam as follows:
State protection from loan sharks is available, and there are examples of loan sharks being arrested, prosecuted and given long prison sentences. According to local media reporting, police in Ho Chi Minh City detected and punished 404 individuals across 263 suspected cases of loan sharking in 2023, and a further 115 individuals across 63 cases in the first quarter of 2024. According to the same reporting, police detected and eliminated 27 mobile applications offering loans at exorbitant rates of interest (up to 900 per cent annually), including ‘Goldvay’, ‘sugarvay’, ‘findong’, ‘wellvay’, ‘cfcash’ and ‘baovay’.[12]
In practice, debtors may be reluctant to report to the police, including due to feelings of shame and, where the creditor is a criminal syndicate, fears of reprisal; in-country sources reported in October 2023 that, unless physical violence was involved, most debtors did not report to the police. Irrespective, the police may be unable to investigate and prosecute a loan shark because there is typically no written evidence of a loan. This is particularly true in recent years: much loan sharking activity moved online during the COVID-19 pandemic and the debtor may not know the identity of the creditor.[13] [Emphasis added]
[12] Ibid, [3.181].
[13] Ibid, [3.182].
I accept that Vietnamese authorities are actively trying to investigate and prosecute loan sharks, including in Ho Chi Minh City, where the applicant would most likely live upon her return to Vietnam. However I also note the relevance of DFAT’s assessment regarding the reasons why many loan shark victims feel unable to make complaints to police due to feelings of shame, fear of reprisal, due to a lack of written evidence of the loan or unless physical violence is involved, as otherwise it will not be considered sufficiently serious to warrant action. I note that all of these factors apply in the applicant’s case.
I also note the country information indicating the barriers facing women in accessing police services and protection, and while most available information relates specifically to barriers facing women reporting family or other gender-based violence to police,[14] it is clear that with only around 10 per cent of police officers being women,^[15] the Vietnamese police force is heavily male dominated, making it more difficult for women to approach police, especially with complaints that relate to culturally shameful issues, including due to being a loan shark victim or victim of family violence.
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.[16]
[14] Ibid, [3.136].
[15] Ibid [5.4].
[16] Ibid, [3.136].
I note that no assessment as to the effectiveness of state protection by police was provided in the 2025 DFAT report but that the DFAT report assessed regarding loan shark victims, that ‘while some state protection is available from the police, its effectiveness is not clear.’[17] The 2022 DFAT report also added this further comment on the effectiveness of police protection more generally:
In country sources told DFAT police tend to react to crime rather than proactively investigating crime. That is, police often rely on catching people in the act of committing crime rather than investigating or using circumstantial evidence. This is not always the case, however, and in-country sources told DFAT that sometimes police take very strong and effective action to investigate crime, but this is not a consistent experience’.[18]
[17] DFAT Country Information Report Vietnam, 11 January 2022 at [3.103].
[18] Ibid, at [5.3].
I note that this aligns with the applicant’s evidence when asked about whether her [children] had complained to police and whether they could protect them, with her expressing concern that such protection may last for only one day or be provided after violence and significant harm had already been inflicted and would not therefore reduce the real risk of such harm. She also expressed her concern that her [children], and presumably herself also if she was to return to Ho Chi Minh City, would be less likely to receive a serious police response because they were only temporarily registered in that location. Concern regarding the applicant’s poor background and lack of connections as well as corruption of police, were also raised as factors undermining the reliability of state protection available to the applicant, in the representative’s submission.
In addition, the applicant does not believe the police would be willing to protect her, having regard to her poor background and lack of connections. This belief also finds corroboration in DFAT’s reporting. For example, police at the commune level (the lowest rung in the hierarchy of the Vietnamese police force) receive lower salaries and fewer benefits than their district- and national-level counterparts, and petty corruption, in the form of “coffee money” payments, are so prevalent in Vietnam as to not be perceived as corruption by the average citizen. Separate to the police, the effectiveness of judicial authorities is also hampered by corruption, and criminal defendants – like, for example, organised illegal lenders – may be able to ensure favourable outcomes through bribery. This, we submit, suggests that were the applicant to avail herself of police protection, this attempt would likely be unsuccessful, either because she cannot afford the bribes required to get the police to act, and/or because the illegal moneylenders can.[19]
[19] Representative’s submission 30 June 2025 at [8.4].
Having reviewed the available country information and assessing the circumstances of the applicant’s case, while I accept that she may be able to obtain some assistance from the police, I find that it would not be sufficiently robust or reliable to provide her with effective state protection such that there would not be a real chance she will suffer serious harm from loan sharks.
Particular social group
As noted above, the definition of ‘well-founded fear of persecution’ requires, relevantly, that the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group (‘PSG’). In addition, the reason or reasons must be the ‘essential and significant reason’ for the persecution feared: ss 5J(1)(a) and (4)(a) of the Act.

100. The applicant’s representative has submitted that the relevant link between the applicant’s claims and one of the five reasons in s 5J(1)(a), is her membership of a particular social group, being ‘poor people’ or ‘poor women’ in Vietnam. Regarding this first formulation of the relevant social group as ‘poor people’, the representative has provided considerable academic and some judicial authority for the validity of defining a particular social group on the basis of economic class, as for most people who live in poverty, poverty is an immutable characteristic from which they cannot escape.
101. While I accept that those people who live in poverty in Vietnam do undoubtedly share a range of common characteristics that define their disadvantage in Vietnam, based on available country information, I struggle to accept that ‘poverty’ is an immutable characteristic in Vietnam, in a general sense.
Vietnam’s remarkable journey from low to middle-income status lifted 40 million people out of poverty between 1993 and 2014. In that time span, the poverty rate dropped to 14 percent from almost 60 percent. Per capita growth since 1990 has been second only to China’s, averaging 5.6 percent a year as of 2017. Vietnamese are now better educated and can expect to live longer than citizens of most countries with similar income levels. Almost every household has electricity, up from less than half in 1993.[20]
[20] International Monetary Fund, ‘Vietnam: Raising Millions out of Poverty’, August 2018.

102. However I do accept that poverty in Vietnam has a particularly gendered nature and impact, as highlighted in a Global South Study Series:[21]
[21] Surendran, S., Feminization of Poverty in a Growing Economy: Vietnam – Global South Studies Series,26 February 2023.
However, it has been noticed that women in Vietnam constitute most of the country’s poor…These are a few of the factors that lead to women being disproportionately impacted by poverty compared to their male counterparts. One thing is clear: women cannot be elevated from poverty unless gender inequality is addressed.[22]
[22] Surendran, S., Feminization of Poverty in a Growing Economy: Vietnam – Global South Studies Series,26 February 2023.

103. Some of the key factors identified in the study found to trap women into poverty and underpin the feminization of poverty in Vietnam include:
· Societal mindset: Vietnamese society is patriarchal in nature. Even though women participate in the workforce, they are also expected to shoulder the responsibilities of childcare and housekeeping. Vietnam has a ‘gendered structured’ economy where the prevalent belief is that men are the primary workers in society while the work performed by women is secondary.
·Lack of Education: Due to government and non-governmental projects, there has been a rise in the enrolment of girls in primary education centres. However, there are low attendance rates.
·Gender-based Violence including domestic violence. Since Vietnamese society believes in the notion that men can “discipline” their wives, domestic violence is not publicly condemned as a major crime.
·Lack of access to Healthcare: Economically disadvantaged women and girls face poor health conditions due to unclean drinking water, shortage of nutritious food and living in poor sanitary conditions and women need additional healthcare with respect to their reproductive system. Lack of knowledge about basic reproductive health and contraceptives results in health disorders and a high number of children. The inability to provide for these children add to their economic disadvantage, trapping families in the cycle of poverty.
·Disparity within the workforce: Even as the labour force and labour market participation are high, women are mostly found in lower paid sectors or in vulnerable employment whereas men go for formal industries such as IT, engineering and architecture. Despite legal guidelines to ensure employment without gender bias, companies, especially the formal sector continue to prefer men over women.[23]
[23] Ibid.

104. I further note that within the category of Vietnamese women who are poor, there are additional subsets of women who are particularly likely to remain in poverty as they are not amongst the categories of other poor people who have greater economic mobility or chance of being lifted out of poverty in Vietnam. These include elderly women in rural areas[24] and also women-headed families with children, especially those who are victims of intimate partner violence.[25] The economic impacts on Vietnamese women who are victims of family violence are well documented and highlight both the personal impacts of family violence on women, and the impact on the Vietnamese economy:
[24] The World Bank, ‘Vietnam Country Gender Assessment’, p. 9.
[25] UNFPA, ‘Policy brief: On Economic Cost of Violence Against Women,’ 2021.
Women experiencing physical and/or sexual violence in the past 12 months spend out of pocket, on average, 9,426,500 VND annually as a direct result of the violence, equivalent to 25% of their annual income. Women and households also had indirect income loss via missed days of paid and unpaid work by the woman and her husband, as well as missed household care work in the past 12 months– equivalent to a national estimate of 975 billion VND. Women experiencing physical and sexual violence are likely to have lower annual income by 30.8% (or approximately 12,642,300 VND) compared to women not experiencing violence. Viet Nam’s economy experiences a productivity loss equivalent to 100,507 billion VND, which is about 1.81% of 2018 GDP, due to lifetime experience of physical and/or sexual violence among ever partnered women aged 15 to 64 years. The costs of physical and/or sexual violence by an intimate partner are a drain on the productivity of women which has significant consequences for the national economy.[26]
[26] UNFPA, ‘Policy brief: On Economic Cost of Violence Against Women,’ 2021.

105. In considering the applicant’s circumstances and her vulnerability to becoming a victim of loan sharks, it is impossible not to also note several other key gendered factors, other than poverty, which may lie as root causes of the applicant’s vulnerability to so-called ‘sexually transmitted debt’, which have led to the circumstances in which she has become responsible for her husband’s gambling debts.
106. The first factor is her status as a rural woman who is married. Country information below shows that women in this category are likely to face rigid traditional gendered expectations of subservience to the male family head and be expected to be willing to sacrifice their interests for their husbands and other family members. Regarding the role of Vietnamese women In traditional marriages, noting the applicant is from a rural background and was married in around 1990.
Vietnamese Confucian ideals of ‘men superior, women inferior’ hold that being a male is valued more than being a female. Men are the backbone at home and in society and are associated with noble qualities and virtues such as ‘nhân’, ‘lễ’, ‘nghĩa’, ‘trí’, ‘tín’ (kindness, decorum, uprightness, wisdom, and trustworthiness). Meanwhile, women are seen from a functional perspective: they should have ‘công’, ‘dung’, ‘ngôn’, ‘hạnh’, which means they need to skilfully take care of housework, maintain a tasteful look, have manners, and practise loyalty. Men are perceived as being more intellectually and physically capable, while women’s life accomplishments are judged by their marriage. Men occupy public space while women’s ‘sphere’ remains the home. Even at home, the woman seldom has her voice heard: she is expected to obey her father, her husband, and then her son.[27] [Emphasis added]

[27] Ibid.

And:
Marriage in Vietnam is deeply rooted in cultural traditions and values, reflecting the intricate social fabric of Vietnamese society. The role of a Vietnamese wife encompasses a blend of traditional responsibilities and modern aspirations, influenced by historical contexts and evolving societal norms…Cultural expectations for Vietnamese wives remain strong, with significant emphasis on respect for in-laws and adherence to social norms. Filial piety is paramount, requiring wives to care for their husband’s parents and uphold family honor.[28] [Emphasis added]
[28] Understanding the Role and Life of a Vietnamese Wife - haivenu-vietnam.com - The Vietnam Experience: Adventures That Inspire

107. DFAT assesses that despite Vietnam having a strong legal framework for gender equality:
In practice, women continue to face ongoing challenges relative to men, including because of entrenched social and gender norms about women and their role in society, which act as a barrier to full equality.[29] [Emphasis added]
[29] DFAT Country Information Report Vietnam, 19 February 2025, [3.112].

And further:
…gender inequality persists, including because of traditional views about family, societal expectations that women should be responsible for unpaid domestic care work, and stereotypes on gender appropriate fields of study and occupation. Gender inequality is most pronounced in rural areas and among ethnic minorities, where women’s social indicators, including for education, health, income and domestic violence, lag behind those of the Kinh.[30] [Emphasis added]
[30] Ibid [3.115].

108. The second factor is linked to the first and relates to the normalisation of family violence that many rural women experience by their husbands and their parents-in-law, whose homes they typically move into following marriage, in a cultural pattern of patrilocal residence. Again, this is borne out in the country information below.
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….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…[31]
[31] DFAT 2025 report, at [3.131].

109. Family violence is known to be purposive in nature and aimed at controlling the spouse or other family members.[32] Family violence provides the means of control for coercing wives to take responsibility for their husband’s debt, a position reinforced by the pressure from other family members, such as parents-in-law, according to dominant cultural norms.
[32] Department of Child Protection, Government of South Australia, ‘Foundational Theories and Knowledge Domestic and family violence Practice Paper’, April 2022.
'Sexually-transmitted debt' (STD) typically refers to a situation where legal liability is spread from the principal debtor to his partner…The main concern is that the spouse takes on obligations due to the circumstances of the relationship, rather than an awareness of the liability or because she receives some benefit…Feminist academics have identified that STD can arise in a range of situations that tend to particularly impact upon women. These situations include where debts are incurred as a result of: family violence (Anrows 2015) or uneven power balance within the relationship; a wish to maintain relationships and to protect family; the impact of women’s traditional roles in the private space, such as the male assuming control of family finances; and a lack of opportunity to gain requisite business education or experience. [33] [Emphasis added]
[33] University of Queensland, ‘Sexually-transmitted/ emotionally-transmitted debt’, Australian Feminist Judgments Project, 2019.

110. The third factor relates to known links between increased likelihood of family violence against wives and children in families with husbands who are in debt, especially gambling or addiction-related debt.
Consultations with service providers in the current research found that family violence (which may include financial, emotional, physical, psychological violence) is often linked to the problem gambling activity of a partner and the consequent impact on families and children is devastating… Consultations with workers who mainly deal with women’s issues in the Vietnamese community has found that a high number of gambling related cases involve some form of family violence . All workers who had contact with women estimated that up to 50-60% of their gambling related cases involve family violence (this includes financial, emotional, psychological and physical violence , sexual violence was never mentioned) and the end result was often family breakdown and the women and children needing emergency housing or refuge accommodation . Some workers stated that women whose partners gamble stay in the situation for a long time and often shoulder the responsibility to pay off his financial debts until they can’t bear it any longer.[34]
[34] ‘Exploring the Presence of Gambling and Family Violence in Vietnamese Families.’

Furthermore:
As evidenced by qualitative and quantitative studies, it is reasonable to suggest that a link does indeed exist between family violence and problem gambling in certain Asian communities. The authors argue that there may be specific cultural factors that underpin the acceptance, maintenance, and under reporting of both problem gambling and family violence in some Asian communities. Such cultural factors include: patriarchal family systems, low help seeking and under reporting, the impact of collectivist culture on gambling normalisation, and immigration and acculturation stresses.[35]
[35] Keen, B., Pickering, D., Wieczorek, M. et al. ‘Problem gambling and family violence in the Asian context: a review.’ Asian J of Gambling Issues and Public Health 5, 3 (2015).

111. I have carefully considered the information set out above, relating to each of the inter-related elements of the particular social group that revolves around gender, being: status as a married Vietnamese woman from a rural background, for whom gendered norms of self-sacrifice for husbands and other family are particularly strong and rigid and amongst whom rates of family violence are particularly high. Through also making the link between problem gambling and family violence, these factors in combination draw together a particular social group with readily identifiable characteristics that are both immutable and which distinguish its members from others in society, is based on characteristics that are not themselves a fear of persecution.
112. I therefore find that there is a particular social group, being ‘rural Vietnamese women married to violent, debtor husbands’, which meets the criteria for a particular social group under s 5L of the Act. I further find that the applicant is a member of that group.
113. I make the further finding that the ‘essential and significant reason’ for the harm feared by the applicant, relates to her membership of this particular social group. Had she not been a rural woman married to a violent man with debts, she would not have been coerced into accepting her husband’s debt and she would not have been vulnerable to harm from loan sharks. This combination of gendered factors, being the applicant’s status as a ‘rural Vietnamese woman married to a violent, debtor husband’, sits at the heart of what has enabled the applicant’s husband and parents-in-law to foist onto her the debt, which she has carried ever since, and has resulted in her facing decades of harm from loan sharks. Loan sharks were able to exploit this cultural expectation that as a member of this particular social group, she would comply with dominant gendered norms and sacrifice herself for her family, as she did. They were then able to formalise her role as the guarantor of the loan. Notably, this harm may well continue without end into her future, due to her having been married to her husband and despite her having been separated from her husband for a long time and her parents-in-law long having passed away.
CONCLUSION
114. For the reasons given above, I have found that the applicant faces a ‘real chance’ of ‘serious harm’ due to her membership of a particular social group, being ‘rural Vietnamese women married to violent men with debts’, which creates her vulnerability to ongoing targeting by loan sharks. I have further found that in her circumstances, this risk applies to the applicant across the whole of Vietnam and thus she is unable to mitigate this risk through relocation. I have also found that this risk will not be mitigated to a level falling below a ‘real chance of serious harm’ through the limited state protection that is available to her. I therefore conclude that the applicant is a person owed protection obligations by Australia under s 36(2)(a) of the Act.
115. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
116. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing dates: 15 May 2025 and 18 June 2025
Representative: Mr Nathan Stormont

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.
…