2120220 (Refugee)
[2025] ARTA 1688
•30 June 2025
2120220 (REFUGEE) [2025] ARTA 1688 (30 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2120220
Tribunal:General Member C Graydon
Date: 30 June 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 30 June 2025 at 8:59am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – fear of reprisal by money lender – religion – Catholic – political opinion – family soldier for the former South Vietnamese Government – economic hardship – employment – fear of detention – return visits to Vietnam – lengthy delay in applying for protection – decision under review affirmed
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, 367A, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 279
CWW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1435
Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 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 4 March 2020. 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 before the Tribunal on 22 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was not represented in relation to the review.
BACKGROUND
The applicant claimed to be [an age]-year-old man from, Tien Gian Province, Vietnam. He applied for a protection visa on the basis that he feared persecution in Vietnam due to his political opinions and religious beliefs, as a Catholic.
The evidence he provided in support of his case is set out below, both at the primary Departmental stage and in this Tribunal review of the Department’s decision.
Evidence before the Department
Information provided in the applicant’s protection visa application
In his protection visa application the applicant claimed to be born in [specified year] in My Tho City, Tien Gian Province, Vietnam. He claimed that as a student he started to oppose the communist regime in Vietnam. He claimed he was denied basic human rights in Vietnam to freedom of speech regarding anti-government policies. He claimed to have participated with his friends in political activities for which he was arrested and detained for questioning. He claimed that his personal business was also threatened due to the imposition of fines by the government. He also claimed that due to being Catholic, he was subject to surveillance.
He claimed to have left Vietnam for his future career and to learn more about human rights, freedom of speech and democracy. He claimed to support the Vietnamese opposition group ‘The Viet Tan Party’ whose head office is in Sydney. He claimed to have expressed anti-government views frequently on [social media] while in Australia and now feared persecution for this, due to monitoring of social media by Vietnamese people abroad. He claimed that his family may also be targeted by local authorities for fines and placed under pressure by the Government due to his political profile. He also expressed fear that the combination of his political views and his Catholic religion would certainly bring him to the adverse attention of the Vietnamese Government if he returned to Vietnam.
The applicant applied for the protection visa lodged on 4 March 2020 in the name of [Alias A], date of birth [DOB 1]. He also submitted a Victorian Drivers Licence in the name of [Alias A].
On 5 April 2021 he submitted to the Department a Form 1022 ‘Notification of Change in Circumstances’ form providing details of his new passport in the name of [the applicant], date of birth [DOB 2]. The applicant also submitted a copy of his new passport biographical page issued at the Vietnamese [authorities] in [City 1] [in] 2021, valid until [2031]. The form also stated, ‘reasons for change of name’, ‘during time in Vietnam, incurring heavy debts, change of name, hiding from creditors.’
On 31 July 2021 the applicant provided the Department with a completed Form 1023 Incorrect Details, requesting the Department to update their database from [Alias A] to [the applicant’s name].
The applicant was not offered an interview by the Department.
In the Department’s decision of 23 December 2021 refusing the applicant’s protection visa application, the delegate accepted the applicant’s identity is [the applicant’s name], date of birth [DOB 2]. The decision accepted that the applicant had entered Australia with the passport bearing the name [Alias A] on which he passed immigration clearance checks, a genuinely issued passport. The delegate also accepted that the applicant had previously entered Australia using a passport in the name [of the applicant] and was issued a passport by the Vietnamese [authorities] in Australia in the same name in February 2021. The delegate’s decision also referred to biometrics testing conducted on [the applicant’s name] during a removal process from Australia in 2008, which matched the biometrics provided by the applicant for his protection visa application in 2021, confirming that [the applicant’s name] and [Alias A] are the same person. On this basis, the Department accepted the applicant’s identity is [the applicant] date of birth [DOB 2].
The delegate refused the applicant’s application on the basis that his political profile was not of a level where he would likely come to the adverse attention of Vietnamese authorities. In forming this view, the delegate referred to the applicant’s ability to leave Vietnam without difficulty as evidence he was not of interest to the authorities at that time and stated that the applicant had not claimed to have participated in any political activities in Australia and that there was low risk his claimed social media posts would have come to the attention of Vietnamese authorities. The delegate also did not accept that Vietnamese Catholics are subject to treatment amounting to serious harm. Regarding the applicant’s implicit claim to fear loan creditors, the delegate found that the applicant could access effective state protection from the Vietnamese authorities. Regarding the applicant’s claim to face economic hardship, the delegate found that the applicant did not face a real risk of significant harm due to having no financial support, nowhere to live and the inability to relocate within Vietnam due to his anti-government opinions following his return to Vietnam.
Evidence before the Tribunal
The applicant lodged his application for review of the delegate’s decision on 30 December 2021. On 13 March 2025, the Tribunal advised the applicant that his case had been constituted to a Tribunal Member and requested further information in anticipation of the case being listed for hearing.
On 5 May 2025 the applicant was invited to attend a hearing before the Tribunal on 22 May 2025. The applicant did not respond to the Tribunal’s hearing invitation, however he did appear at the time and date of his scheduled hearing.
The applicant appeared before the Tribunal on 22 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Summary of the applicant’s oral evidence at the Tribunal hearing on 22 May 2025
The applicant has never been married but previously had a partner, from whom he has permanently separated. He does not have children. He [has number siblings]. [Most of his siblings] continue to live in My Tho City, Tien Giang Province. [Another sibling] went to live in [Country 1] last year. His parents have passed away. His father was a cyclo driver and his mother was a homemaker.
His family were very poor and never had enough income to meet their basic needs. He attended school until [grade]. After that he worked [in a specified occupation].
His parents passed away when he was [age] and he lived in their house with [the only] sibling not already married.
Two years after leaving school he started work at a [business 1] [as an occupation 1], where he worked for four years. He moved to Ho Chi Minh City where he continued to work for three years as [an occupation 1]. He returned home and worked as [an occupation 1] whenever he could.
He heard that Australia needed [occupation 1s] and so he decided to find a way to get to Australia. He borrowed a lot of money to find a way to get to Australia so he could work. He borrowed money from his relatives and from friends. Some of them asked for interest to be paid and others did not.
He paid someone in Ho Chi Minh City to help him with the travel arrangements to Australia. He obtained his own (genuine) passport without difficulty and gave it to the agent who arranged his visa and travel arrangements.
He first came to Australia in March 2008. He came on documentation indicating he was associated with [event 1]. He had a two-year multiple entry visa allowing him to stay for a maximum of three-month periods. After the first three months he returned to Vietnam. He then returned to Australia in July 2008 planning to stay for a further three-month period however he was stopped at the airport upon arrival and the authorities checked if his [event 1] documentation was genuine. They found he was not an [event 1] member or associate and so his visa was cancelled on arrival. He was held in detention for a few days and then removed back to Vietnam.
He wanted to come to Australia to work so he could pay back the money his family and friends had lent him and also so that he could help to support his family, as they are very poor. The next time he came to Australia he came as a businessman on a different passport under a different name. He arrived in December 2008 and then did not have anything further to do with the immigration department under 2020.
During this time he worked mainly on farms in Victoria but also some cleaning jobs and handyman jobs. He was able to send money home to his family. He continues to send money to support his [family] now, as they are old and unable to work due to health issues. Only two of his siblings are working and the [others] are staying home as they have health issues. All of them are married and have their own children except for [one] who is not married and who had a stroke around 12 or 13 years ago. [That sibling] continues to live in their parents’ house. He sends money to support [them]. His other siblings live in their own houses but close by, around ten minutes away. He is close to [one] sister and talks to her one or twice a week.
He is currently working casually in a [business 2] where he [does specified skilled work]. He has also worked in various [occupation 1] jobs for [specified occupation 1 work]. He does not have regular work and finds it difficult to maintain steady employment.
He applied for a protection visa only in March 2020 as it was only then, when he was on a farm, that he heard from another farm worker about the existence of the protection visa application process. He was recommended someone to assist him with his application form as he did not have good English. He gave the person his passport and some background information as well as the fee. The person asked the applicant why he could not return to Vietnam and the applicant told him it was because he had a lot of debts and that if he returns and does not pay it back, he will face court or prison. He was not given a copy of his application form and he does not know what it says.
I asked him if he is Catholic or if he or any member of his family had ever been Catholic. He said that he was not Catholic and nor was any member of his family. He said his mother had been a Buddhist and that he sometimes lights incense but he does not have any official religion. He said that his mother had been a member of a Buddhist temple and that after she had passed away, he paid money so the temple would display a photograph of his mother in her memory. He was upset that when he stopped sending the template money, they then removed his mother’s photograph.
I explained that his application form said he was Catholic and feared difficulties because of his religion. He said that was wrong and the person must have completed the form incorrectly.
I asked him if he had ever been involved in any political activities in Vietnam or said anything publicly against the Government or if he had ever posted anything against the Government on social media. He said he had never been involved in any political activities or posted anything on social media. He said he hates the Communist regime but that he had never spoken out against it.
I explained to him that his protection visa application form said that he had been a student activist and had experienced problems due to him having spoken out against the government in Vietnam and that he had been posting anti-government messages on [social media] since he had been in Australia. He said that all of this information was wrong and that he had never said those things or made those claims in what he told the person who completed his form. He confirmed that he was not pursuing protection claims relating to his political opinions or due to his religious beliefs.
I asked him why he feared return to Vietnam. He said he would face court or prison for being unable to repay his loans which he had borrowed from family and friends. He said that some of the money he had borrowed from a particular friend who in 2018 or 2019 went to his sister’s house and told her that he had already reported him to the police for not repaying the money and that he would get the police to arrest him on his arrival back to Vietnam at the airport. Since that time, the friend has gone back to his sister’s house to tell her his plan is to ensure the applicant is arrested when he arrives in Vietnam. The friend told his sister that he had already waited for ten years for the applicant to repay the money, but he has lost his patience and that is why he took the step of reporting the applicant to the police. The applicant has known this friend since he was a child as he lived closed to his house, around five minutes away. He was a good friend, which was why he had lent him the money in the first place.
The applicant explained that in 2008 when he first wanted to come to Australia he had borrowed [amount] (approximately AUS [amount]) from his friend with an interest rate of 5% per month. He says he has been repaying him the interest but still owes him the [amount] principal, which he plans to repay to him. He is paying back the interest and sending this money to his friend via his sister, and he wants to repay the loan itself, however he does not have a regular job and so it has not been possible for him to do this, while also meeting his own living expenses and those for his sister.
I asked if his friend had brought any court action against him for repayment of the loan. He said he is not aware of any court case against him but he is worried the police will arrest him. His friend called him on the telephone in 2019 and threatened him, saying that if the applicant did not pay back the loan, he would be arrested at the airport, put into prison and that his friend would pay a prisoner to attack him there. After receiving this call, the applicant changed his telephone number and has not had contact with the friend since.
He does not know where the friend lives now. The friend has most recently had contact with his sister around one year ago when his family came together for the anniversary of his mother’s passing. The friend attended but did not approach or say anything to his sister or any other member of his family.
The Tribunal explained that even if it accepted his evidence that he had this outstanding loan, it may not accept that he faced a risk of persecution due to his friend’s possible plans to repay the money he owes him.
The Tribunal asked the applicant if there were any other reasons why he was fearful of returning to Vietnam. The applicant explained that his father had been a soldier for the South Vietnamese Government in the civil war and that after the North Vietnamese army won the war, this had meant that his parents had been detained and his family had suffered discrimination and other problems due to being on the losing side.
He added that at the end of the war, his father, along with other soldiers fighting for the South Vietnamese government, was put in prison. When he was a child, around [age] years old, in 1983 or 1984 his mother had tried to escape from Vietnam by boat but someone informed the authorities she was planning to leave and she was arrested and detained for five or six months. He said that his sister was a very good [occupation 2] but was denied a [promotion] position she had earned, due to her family’s political background. He said [a] brother had been working in a factory but was made redundant due to his political background linked to his father also.
The Tribunal asked the applicant how his father’s political background might affect him. He said that he was a very good [occupation 1] but would struggle to get a high paid position because of his family’s political background.
He said his main reason for fearing return to Vietnam was the threat by his friend to have him arrested for his unpaid debt. He was also afraid that there would be no one to help support his sister because she is sick. I asked where he would live if he had to return to Vietnam. He said he would be arrested and in jail. He said that even if he was not arrested, he could not live with his sister as people there know that he has debts to his friend and also to other family members. This is a big shame for him and for other members of his family and he would not want to cause this problem to them.
He is not sure if he would be able to find a job, assuming he was not arrested. I asked if his siblings could help support his sister and he said his other siblings are retired and cannot support her and his [sibling] in [Country 1] is also old and not working. He said he needed more time in Australia so he could work and pay the money back and then he could return to Vietnam.
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 his 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 affirmed.
Applicant’s identity and country of reference
The issues with the applicant’s identity have been set out in paragraphs [10-14]. I note that the Department established through biometric testing that the applicant arrived in Australia in December 2008 on a travel document in another name but was the same person who had in arrived in Australia in March 2008 under the [applicant’s] name , date of birth [DOB 2]. The applicant has provided a copy of his Vietnamese passport issued in 2021 and valid for ten years in the name of [the applicant], date of birth [DOB 2]. The applicant’s evidence to the Tribunal was that his true identity was [the applicant], date of birth [DOB 2].
I accept the applicant’s identity, as was also found by the Department, to be [the applicant’s name] and that his date of birth is [DOB 2]. The applicant has consistently claimed to be from Vietnam. I am satisfied that the applicant is a citizen of Vietnam. There is no information before the Tribunal that the applicant would have a right to enter and reside in any other country except for Vietnam. I find that the applicant’s ‘receiving country’ is Vietnam and I have assessed his claims against that country.
Credibility of the applicant’s claims
There are several factors that raise questions regarding the applicant’s fear of return to Vietnam and the credibility of his claims for protection.
The first is his migration history, discussed with the applicant, involving two return trips to Vietnam since his initial arrival in Australia in March 2008. The fact of these returns may prima facie suggest that at least throughout this period of time, the applicant was not fearful of returning to Vietnam. There are, however, several counter indications relevant in this case. I note that the first time he returned to Vietnam he only stayed in Vietnam for a week before returning to Australia. His second return to Vietnam was involuntary, as he was subject to removal by Australia following his visa cancellation upon arrival. Therefore this return travel to Vietnam cannot be said in any way to reflect a lack of subjective fear on his part to return to Vietnam as he had no control over that travel. Upon his removal to Vietnam, he then spent just over five months in Vietnam, a more substantial period. His evidence was that he spent this whole time searching for another way to return to Australia as soon as possible. He then returned to Australia in December 2008 using a passport in a different name. He has not returned to Vietnam or otherwise left Australia since that time.
Moreover, I note that the applicant was upfront in his evidence before the Tribunal, that his primary motivation for coming to Australia and maintaining a presence in Australia was to give him an opportunity to work, as he owed money to family and friends in Vietnam and had family support obligations to his older siblings, his unmarried sister in particular. He did not claim that at the time of his multiple trips to Vietnam that he feared returning to Vietnam, only that he wanted to work in Australia where he could earn a higher salary to pay off his debts. The applicant has been open that he did not have a subjective fear of return to Vietnam in 2008 except in so much as returning to Vietnam would prevent him from working in Australia. This issue of his multiple return trips to Vietnam therefore has no bearing on my assessment of the applicant’s credibility as a whole, or of his particular claims.
I note the applicant’s evidence before the Tribunal and the Department’s investigations concluding that he used a travel document in another person’s name and held himself out to be that person in Australia, including by securing a Victorian driver’s licence and applying for a protection visa, in that other name. I also note his evidence that he held himself out to be associated with [event 1], when he was not, to secure a multi-entry visa enabling him to travel to Australia, this being the basis on which that visa was cancelled, triggering his earlier removal from Australia. I also note his evidence and the Department records indicating that he remained in Australia without any visa for more than ten years before applying for a protection visa. These behaviours indicate to the Tribunal that the applicant is willing to ‘bend the rules’ in order to achieve his visa goals. These behaviours do, therefore, inherently raise questions around the reliability of the applicant’s evidence in this visa refusal review process, especially in the absence of further corroborating evidence of his claims.
I also note a more than eleven -year delay in applying for protection in March 2020 since his last arrival in Australia in December 2008. An applicant’s delay in applying for protection is ‘a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of [an] applicant’s alleged fear of persecution.’[1] However, I also note that the mere fact of a delay in applying for protection cannot, of itself, support a finding that the applicant’s claims lack credibility or that the applicant does not hold a well-founded fear of persecution. Rather, a delay in applying for a protection visa may only undermine an applicant’s credibility, or the genuineness of their fears, in an ‘appropriate case’[2] for example, where the delay is unexplained[3] or where the applicant fails ‘to provide the Tribunal with an explanation for the delay in making the application for the protection visa, which was reasonable, rational, and consistent with the existence of a fear of persecution.’[4]
[1] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301, [11] (Heerey J).
[2] CWW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1435, [52] (Markovic J).
[3] SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68, [27] (Dowsett, Bennet and Edmonds JJ).
[4]SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, [69] (Moore J).
The applicant’s evidence was that he only became aware of his ability to apply for a protection visa in 2020, when a co-worker on a farm told him about the visa category. I struggle to accept that someone could be working for years on farms and in other roles where other asylum seekers also frequently work and to have had no curiosity about, or access to information about what visas or processes others may be on or applying for, especially over such an extended period of time. I do not accept the applicant’s explanation that he remained unaware of the option to apply for a protection visa for eleven years while he was working and interacting with other similarly situated workers, even taking into account that people understandably often do not like to openly discuss their visa status or personal circumstances. It seems implausible to me that the applicant would not have gained some awareness of protection visas, which may have triggered his curiosity and caused him to seek out more information for himself, which has been readily available online, including in Vietnamese. The more probable explanation for the timing of the applicant’s application in 2020 was likely the onset of the COVID-19 pandemic and the range of extraordinary measures coming into effect at that time, including workplace shutdowns and increased needs for, and provision of, emergency social welfare payments and access to Medicare funded health services, which were tied to people holding a bridging visa. In any event, for the further reasons I set out below, I draw no adverse inferences against the credibility of the applicant’s claims due to the very lengthy delay in his application for protection.
Another factor raising questions regarding the credibility of the applicant’s claims is his own admission at the Tribunal hearing that all of the substantive information regarding his protection claims contained in his initial protection visa application form, were false, and it was only then, at the hearing, that he put forward his actual claims. I note that s 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of claims or evidence not raised before the primary decision-maker unless the applicant has a reasonable explanation for not having done so.
I note that the applicant’s protection visa application form states that the applicant received no assistance in completing the form and that no interpreter was used to prepare the form. Yet the applicant’s evidence at the hearing was that someone did assist him, someone a co-worker had referred him to, and to whom he paid money to complete his application. I note that even now, in 2025, the applicant has limited verbal English language proficiency and likely less written English language proficiency. I assess that back in 2020 when his protection visa application was prepared, he would have had an even lower level of English language ability and been unable to complete the form without someone assisting him. I therefore accept the applicant’s evidence that someone did assist him to complete the form. Regarding how the false claims came to be made on that form, the applicant has explained that he had provided correct information regarding the reasons he could not return to Vietnam to the person who had assisted him but that this person inserted the false claims into the form without his knowledge.
Given that I accept the applicant did receive assistance completing the form, and that person did not declare the assistance they provided him, it is highly likely that person was not qualified to provide such assistance and not bona fide in their assistance. It is therefore not implausible that such a person would invent claims and include them on the form. I also accept the applicant’s explanation that he had been unable to later detect that false claims had been made on his behalf, as I accept his evidence that he was not provided with a copy of his completed application form by that person and I also accept that nor did he have sufficient English language skills to understand what was written on that form, even had he been given a copy.
Another reason why I am willing to accept the applicant’s explanation for the false claims written on his protection visa application is because he seemed genuinely surprised when I informed him that his protection application had been made on the basis of claimed political activities and profile, and due to his religious identity as a Catholic. In weighing the circumstances regarding the applicant’s interaction with the Department, I also bear in mind that when the applicant alerted the Department to his new passport details in 2021, he did provide, as a reason for his name change, his fear of debt creditors, thus raising the thrust of his new claim at that time. The Department accepted this as an ‘implicit’ claim in his protection visa assessment and addressed this claim in its statement of reasons. Had the Department extended an opportunity for the applicant to explain his claims at an interview with the assistance of an interpreter, the false claims made on behalf of the applicant may have been identified and addressed by the applicant at a much earlier point of the process. I find it somewhat surprising that the applicant was not given an interview opportunity by the Department, especially given the issues arising with his identity and given his submission of a new claim. However it is no fault of the applicant that the Department decided not to offer him an interview, despite these circumstances.
Given the language barriers faced by the applicant and his lack of earlier knowledge that false claims had been made on his behalf, I accept that the applicant, who is unrepresented, was unable to alert the Tribunal to the false claims or to his actual claims until he had the opportunity to be made aware of these false claims and to explain them, as well as his real claims for protection, with the assistance of an interpreter at a hearing. I accept that this is why these issues have therefore only emerged at this late stage.
These circumstances highlight the difficulties faced by many non-English speaking, unrepresented, protection visa applicants confronted with a ‘paper-based’ process, which often only provides and accepts information in English and often without other opportunities for them to put forward their information with the assistance of an interpreter. This case highlights the procedural errors that such processes may fail to prevent at earlier stages and where they occur, the need for fair assessment of applicants’ credibility when they have been impacted by procedural barriers such as language or lack of access to reputable and free legal assistance, to enable them to accurately put forward their protection claims at the earliest possible time.
In sum, I accept that the applicant was not aware that false protection claims had been made on his behalf until the Tribunal revealed this to him during the hearing. I also accept that due to language barriers and a lack of reputable legal assistance, the applicant has had limited capacity to put forward his true claims at an earlier point. I therefore accept the reasonableness of the applicant’s explanation for his new claims, meaning that s367A does not apply and I draw no adverse credibility inferences from the fact that the applicant’s protection claims have changed significantly throughout the course of his application and review process.
More generally, I am mindful that in determining whether I am satisfied that key events occurred as claimed by the applicant, I must assess the evidence in a holistic and beneficial way and without unduly focusing on small or otherwise immaterial inconsistencies, given that the fallibility of human memory is well established. I am also mindful that I need to make reasonable allowances for the fact that many of the events relating to the applicant’s case occurred a long time ago, and the possible effect of the passage of time on the applicant’s memory. There are also inherent risks of misunderstanding arising when evidence is given via interpreters, notwithstanding their professionalism.
I have also given regard to the longstanding principle governing refugee status determination that the special situation of asylum seekers often may mean they should not be required to produce all necessary material to corroborate their claims.[5] This is highly relevant in this case, noting there is very little evidence, other than the applicant’s oral evidence, corroborating key claims made regarding the threat he allegedly faces. Additionally, I have had regard to relevant judicial authority on the issue of findings on credibility in this context,[6] and note that many of these principles of the allowances which should be provided, are reflected in the former Administrative Appeal Tribunal’s Migration and Refugee Division’s Guidelines on the Assessment of Credibility.[7]
[5] UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, at [10]. See also: UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, at pp 43-44.
[6] Including: Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [192] and Kirby J at [211]; Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 per Hely J (these comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Kirby J at [7]; Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 per Foster J at [26].
[7] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, July 2015.
Taking together this holistic context and notwithstanding the range of circumstances outlined above surrounding the history of the applicant’s protection application, I have approached the applicant’s evidence with an open mind and appraised it on its own merit, including regarding the level of candour, detail and consistency reflected in his evidence. In my assessment, the applicant provided a credible level of detail in his accounts of his background and experiences, including regarding his protection claims. His evidence was internally consistent and plausible, based on my reading of relevant country information.
I assess that the applicant gave his evidence in an open and honest manner, including in his responses to questions where he may have anticipated his answers could cast him and his case in a more questionable light. I had a strong sense throughout the hearing that the applicant had decided to provide the Tribunal with a truthful account of his circumstances, his motives and fears. This was confirmed later in the hearing when I was putting to the applicant some of the difficulties and issues regarding whether or not the claims he had made met the necessary legal definitions and thresholds for a favourable decision. He responded that raising these issues seemed unfair to him, as he had told me the truth. I confirmed that he had made the right decision in deciding to tell the truth, however that did not change the fact that I needed to make findings relating his evidence to the specific legal criteria applicable to his application for protection in determining whether he was owed protection obligations in Australia or not.
Findings of fact and key claims made by the applicant
I accept the following claims made by the applicant:
·The applicant received a loan from a childhood friend in 2008 for an amount of [amount], with interest payable at 5% per month. Since then, the applicant has been regularly paying his friend the interest on the loan but he has not repaid any of the loan principal. He continues to owe his friend [amount].
·In 2018 or 2019, around ten years after providing the loan, the applicant’s friend went to the applicant’s sister’s house and told her that he had already reported the applicant to the police for not repaying the money and that he would alert the police to arrest him on his arrival back to Vietnam.
·Since that time, the friend has returned several times to the applicant’s sister’s house or otherwise told her that his plan is to ensure the applicant is arrested when he returns to Vietnam for not repaying the loan.
·The friend has never threatened to harm the applicant’s sister, any other family member or any property of his family. The friend has limited his threat to saying that when the applicant returns to Vietnam he will arrange for the police to arrest the applicant and that if the applicant still fails to pay back the loan, the friend may decide to pay someone to harm him in prison.
·The friend contacted the applicant directly, once by telephone in 2019, when he reiterated the demand for repayment or he would take steps for the police to arrest the applicant on his return to Vietnam. Following this call, the applicant changed his telephone number and has not had any further direct contact with his friend since.
·The most recent contact from the friend was around one year ago when the friend attended the applicant’s mother’s anniversary of her passing, however, did not have any contact with the applicant’s sister or other family members at the gathering.
·The applicant fears being arrested and detained or imprisoned on his return, due to the unpaid loan as he does not have a regular job in Australia or savings available to enable him to immediately repay the principal of the loan.
·The applicant fears he will be unable to secure a job in Vietnam that will enable him to repay the loan, in part due to discrimination he may face due to his father’s political background as a former solder with the South Vietnamese Government during the civil war.
·The applicant also fears that in Vietnam he will face economic hardship and he will be unable to continue to support his older unmarried sister who is unable to work due to ongoing health issues following a stroke more than a decade ago.
·The applicant does not fear return to Vietnam due to his political opinion or any related political activities, nor due to any issue associated with his religious beliefs.
Does the applicant satisfy the refugee criterion for protection?
Applicant’s fear of harm due to the unpaid loan
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.
At the hearing, I raised with the applicant the question of whether his friend, the ‘creditor’, sought to pursue him for reasons of his race, religion, nationality, political opinion or because he was a member of a PSG. The applicant’s response and evidence in general suggests that any threat or harm caused to the applicant by the creditor would arise due to the applicant’s failure to repay the money owed to him. This is the ‘essential and significant reason’ for the harm feared by the applicant and not one or more of the five reasons enumerated in ss 5J(1)(a) of the Act.
As such, I am not satisfied that the applicant has a ‘well-founded fear of persecution’ from the creditor, as required for the purposes of the definition of a ‘refugee’ contained in s 5H of the Act. I return to the issue of the applicant’s claims regarding the unpaid loan in my assessment below regarding the applicant’s ‘complementary protection’ claims.
Applicant’s fear of harm due to economic hardship including due to discrimination based on his parents’ political background
The applicant has also claimed that he faces economic hardship on his return to Vietnam. Again, while economic hardship is not of itself one of the five reasons enumerated in s 5J(1) of the Act, the applicant has claimed that the financial hardship he faces will be worse than for others due to the continuing effects of his father’s political background, as a former soldier for the South Vietnamese Government or the Army of the Republic of Vietnam (the ‘ARVN’) in the civil war.
I note that this aspect of the applicant’s claim may provide a nexus to either the s 5J(1) ground of political opinion, in this case, imputed political opinion, or the particular social group ground, being the applicant’s membership of an identifiable group of people and their family members perceived to have supported the South Vietnamese Government ‘side’ in the civil war.
The applicant’s evidence was that after North Vietnamese forces (Democratic Republic of Vietnam) won the war, his father was subjected to detention in a re-education camp and his mother was arrested and detained for around five or six months for trying to flee from Vietnam. He claims that since that time in the 1980’s, his family have continued to be subjected to discriminatory treatment due to their imputed support for the South Vietnamese Government based on their family background. He provided examples that his sister was denied promotion to a principal position in her school and his brother was made redundant from his factory job. He claims these forms of discriminatory treatment continue today and will increase the risk and severity of economic hardship that he will face upon return to Vietnam.
It is well documented that a sense of ‘victors’ justice’ prevailed after the civil war in Vietnam and those associated with the South Vietnamese Government, including ARVN soldiers, were often subjected to harsh treatment and serious human rights violations.
After the war ARVN soldiers, especially officers, were subjected by the victorious communists to even harsher penalties than civilians, including years of forced labor and indoctrination in ‘re-education camps’. Thousands died from sickness and starvation; those who survived and didn’t manage to escape to the west were treated with contempt and discrimination, which were even extended to their children and grandchildren. The main South Vietnamese military cemetery at Bien Hoa was vandalised and virtually abandoned until recent years. Even in death the soldiers were treated as puppets, not people.[8]
[8] Edwards, P., ‘From the bookshelf: the defeated South Vietnamese army’, The Strategist, 18 August 2016.
While I note DFAT country information assessing that ‘the relatives of people who were involved in the Vietnam War on the side of the south face a low risk of official discrimination, if at all,’[9] I note other country information, such as that above, which suggests that discriminatory treatment by the Government against families associated with the South Vietnamese government or war effort continues to be extended to the children and grandchildren of those directly involved in the war. Other commentators note the lasting effects on those perceived to have supported the South Vietnamese Government and the lack of meaningful reconciliation to have occurred since the civil war.
While North Vietnamese veterans are celebrated, their southern counterparts ‒ as many as 400,000 officials and officers spent years in re-education camps ‒ have been denied benefits, government jobs and basic dignity. Hundreds of thousands others were sent to "new economic zones," the civilian equivalent of the re-education camps. About 2 million people fled as boat people ‒ of which more than 500,000 died or disappeared…. In a poor country where the haves and have nots once coexisted, the new Socialist Republic of Vietnam proudly exhibited a uniformly poor populace, with the newest poor being the citizens of the former South Vietnam. Historian Christopher Goscha suggests that "this internal haemorrhaging of modern Vietnam was proof that national reconciliation had been a failure.” Private and business properties, lands and bank accounts were confiscated. Memorial sites were demolished, cemeteries desecrated, musical records and cultural artifacts destroyed, and agriculture was collectivized leading to a decade of famine into the 1980s….The Hanoi government has never been serious about reconciliation as South Vietnamese veterans languished as second-class citizens without job support, economic and social help. Even today, efforts to support these forgotten veterans are blocked. [10]
[9] DFAT Country Information Report Vietnam,
[10] Vo, N.M., ‘50 years after fall of Saigon, Vietnam can't heal by erasing half its past’ Opinion, USA Today, 2 April 2025. See also Le, D. ‘Reunification Without Reconciliation: A Glimpse Into The Social Conflicts And Integration Process In Postwar Vietnam’, 30 April 2022.
I accept that veterans or others who were seen as having supported the South Vietnamese Government during the civil war and their family members, may continue to face discrimination in public sector employment, as they would lack the preferred or required political backgrounds for selection, including ‘revolution’ period credentials, as per the information below.
As a general rule, all members of the public sector and Vietnam’s political system are (or have been) members of the Youth Union and are (or will become) members of the Party… The policy outlining recruitment of public employees also indicates that priority should be given to “talented people, people who contributed to the revolution, and ethnic minorities”… Across the Vietnamese public sector, there exists a priority points-based recruitment scheme. Certain categories of people are given additional points on top of entrance test results to boost their opportunity for appointment. Bonus points are awarded for those in specific categories such as: Heroes of the Armed Forces, Labor Heroes, War Invalids, Ethnic minorities, Military Officers, Police Officers, Professional Military Personnel, Children of Martyrs, Revolutionary Activists before the uprising (earlier than August 19, 1945), Offspring of Resistance War Activists infected with toxic chemicals, Vietnamese Pioneer Young Union members, Young intellectuals who have volunteered to participate in rural and mountainous development…..[11]
[11] Chappell, L., Hiền, L.T., Hamilton, C., Mackay, F., Linh, C.M., Thu, V.T., ‘Reaching the Apex: Strengthening Opportunities for Women’s Leadership in Politics and Public Administration in Vietnam’ April 2020, p 24.
Several of these priority criteria relate to recognising and rewarding those considered to have supported the North Vietnamese side of the conflict, which in effect excludes or discriminates against those associated with the South Vietnamese side of the conflict. I also accept that even prior to reaching this priority selection criteria there is also eligibility criteria to apply for the public service entrance exams[12] that find that the applicant would be very unlikely to meet this eligibility criteria due to a combination of his educational and work history, in addition to the embedded political criteria. I therefore accept that he would be ineligible for public sector jobs for reasons that include his family’s political background.
[12] LawNet Vietnam, ‘What are the enrolment guidelines for the Vietnam People's Public Security education establishments in 2024? How is the enrolment for the Vietnam People's Public Security education establishments in 2024 conducted?’
However I have also considered the other employment opportunities that would still be available to him. According to the World Bank only around 11% of the total Vietnamese workforce is employed in the public sector, (comprised of “government” civil service, “public service units” in public health and educational facilities, and state-owned enterprises),[13] leaving around 89% of the job market potentially still open to the applicant. I note DFAT’s 2025 assessment that ‘Vietnam has a thriving private sector.’[14] I have been unable to find any country information suggesting that the political barriers which apply in the public sector also apply to the private sector, noting both the assessment by DFAT (above) and also having considered other in-depth employment analysis for Vietnam. [15] I note that these identify as relevant variables in the private sector job market ‘education levels… age, urban/rural, region, gender, and ethnic minority status,’[16] and do not mention political background as a relevant variable in private sector employment opportunities in contemporary Vietnam.
[13] Demombynes, G., Testaverde, M., ‘Employment Structure and Returns to Skill in Vietnam Estimates Using the Labor Force Survey’, World Bank, 2018, p. 12.
[14] DFAT Country Information Report Vietnam, 19 February 2025, [2.15].
[15] [15] Chappell, L., Hiền, L.T., Hamilton, C., Mackay, F., Linh, C.M., Thu, V.T., ‘Reaching the Apex: Strengthening Opportunities for Women’s Leadership in Politics and Public Administration in Vietnam’ April 2020; Demombynes, G., Testaverde, M., ‘Employment Structure and Returns to Skill in Vietnam Estimates Using the Labor Force Survey’, World Bank, 2018.
[16] Demombynes, G., Testaverde, M., ‘Employment Structure and Returns to Skill in Vietnam Estimates Using the Labor Force Survey’, World Bank, 2018, p. 21.
Based on the evidence available, I do not accept that the applicant would likely face discrimination in the private employment sector, the dominant employment sector, due to his family’s political background. I find that any discrimination he may experience due to his family’s political background would be limited to public sector roles, and does not rise to a level where it could constitute ‘serious harm’ as defined in s 5J(5)(d),(e) or (f), such that it would threaten his capacity to subsist, or involve denial of access to basic services or to earn a livelihood of any kind, which may threaten his capacity to subsist.
I have also considered other personal characteristics of the applicant, including his age, to determine whether his fear of economic hardship may rise to a level where he would face a ‘real chance’ of ‘serious harm’. In relation to the Vietnamese economy as a whole and minimum wages, according to DFAT’s assessment in 2025;
The World Bank classifies Vietnam as a lower middle-income country. Gross Domestic Product (GDP) per capita was USD4,000 (AUD6,400) in 2023. Incomes have expanded considerably in the last 20 years, although differences between urban and rural areas can be significant. Incomes are highest in Hanoi and Ho Chi Minh City (in July 2024, the monthly minimum wage in these cities was VND4.96 million or AUD312). Ho Chi Minh City is Vietnam’s richest; the country’s industrial engine and entrepreneurial hub, it contributes more than 20 per cent of national GDP. Services are the single largest economic sector, accounting for over 50 per cent of the economy, followed by manufacturing (33 per cent) and agriculture (15 per cent). [17]
[17] DFAT Country Information Report Vietnam, 19 February 2025 [2.12].
DFAT also assesses that Vietnam has made significant progress in reducing poverty, and even managed to largely eliminate ‘severe poverty’ for the largest ethnic group (kinh), which includes the applicant.
Vietnam’s strong economic performance over several decades has resulted in significant poverty reduction and a growing middle class. The rate of multi-dimensional poverty was 4.3 per cent in 2022, down from 18 per cent in 2012 (and 58 per cent in 1993). Where it exists, poverty is concentrated in ethnic minority communities, which live primarily in rural and mountainous areas in the Northwest and Central Highlands, where the main industry (agriculture) is less productive and remote locations limit access to services and markets. Addressing poverty within these communities is a longstanding priority for the Government of Vietnam. Extreme poverty among the Kinh (the largest ethnic group in Vietnam) has largely been eliminated.[18] (emphasis added)
[18] DFAT Country Information Report Vietnam, 19 February 1015, [2.17].
Country information indicates a number of relevant variables regarding wage levels in Vietnam.
Not surprisingly, hourly wages tend to be higher for more experienced workers, with the exception of the 60-64 age cohort, for which wages seem to be lower. The evidence presented so far would suggest that this could be the result of a high concentration of elderly workers in low-skilled occupations. Men tend to have higher salaries than women, while a first look would suggest that the same is not true for ethnic minorities as opposed to ethnic Kinh.[19] Hourly wages in 2016 for those with employment contracts for ‘manufacturing’ were 20,000, for ‘trade and hospitality’, 23,000 and for ‘construction’ 27,000.[20]
[19] Ibid, p. 11.
[20] Ibid.
The applicant is currently [age] years old. He is still a full decade away from reaching the age-group cited above, being 60-64 years old, where wages may drop despite years of work experience. I also note that under the Labor Code (2021), it is illegal in Vietnam for employers to discriminate against someone because of their age,[21] and that such legal protections apply to many other personal characteristics also. While I do not discount the existence of age discrimination against older Vietnamese workers still occurring to some degree in practice[22] notwithstanding the legal prohibition on age discrimination, I note that the most recent available employment figures indicate that the number of employed people in Vietnam aged over 50 years old, is steadily increasing.[23] I also note that the Labor Code changes in 2021 also introduced staggered increases to the retirement age for men from 60 years to 62 year by 2028,[24] indicating that more older workers will be remaining in the workforce for longer in Vietnam for the foreseeable future and noting that the applicant still has more than a decade before he reaches retirement age.
[21] Hoai, N.H., ‘Vietnam’s Workplace Anti-Discrimination Rules’, 3 February 2023.
[22] Pham, L., ‘Older workers face challenges in staying employed as companies favour younger candidates’, VnExpress International 11 April 2025.
[23] Employment: Age 50 and Over data was reported at 14,534.600 persons in 2017, an increase from 14,404.800 in 2016. Employment: Age 50 and Over data is updated yearly, averaging 13,274.200 from Jun 2009 (Median) to 2017, with 9 observations. The data reached an all-time high of 14,534.600 persons in 2017 and a record low of 8,613.900 persons 2009. See CEIC General Statistic Office, ‘Vietnam | Employment by Age Group: Annual’, 2017.
[24] Ai, D.T., ‘Vietnam's New Labor Code – Key Changes - Employee Benefits & Compensation - Vietnam’,12 October 2022.
111. In assessing the risks facing the applicant due to this unpaid loan, I have considered a range of circumstances including: the lack of evidence the creditor has in fact reported the unpaid debt to the police; the lack of evidence the creditor is motivated to follow through on his threat given the absence of actions already taken by him with police or against the applicant’s family members or property; the lack of evidence that the creditor, a person with no known criminal history, would be capable or willing to follow through on his threat given the high penalties for making or receiving bribes; the indicators that the creditor is neither a ‘neighbourhood lender’ nor part of any organised criminal syndicate or loan shark group; the country information indicating that even if the creditor were a ‘neighbourhood lender’, the risk of the applicant facing harassment or violence for an unpaid debt, would be low; the availability of police protection to the applicant in the event there was any unlawful action taken by the creditor against him.
112. I have also considered the measures the applicant himself may be able to take to reduce any residual risk or worry he may face due to the unpaid loan, primarily by accelerating and prioritising his efforts to pay back the loan principal. This amount is around AUS[amount], which in my assessment is not a sum beyond the reach for the applicant to repay. If he is unable to repay the amount in full while he is in Australia, then based on assessment above, it seems the creditor may be amenable to a repayment agreement, as he essentially wants his money back and would likely prefer to receive repayment of the loan in portions, than not at all. In conclusion, considering all of these factors, I find that the risk of any harm occurring to the applicant due to the unpaid loan does not reach a level of it being a ‘real risk’ of ‘significant harm.’
113. I have already considered the applicant’s other claims, being his economic hardship claim, under the refugee criteria, as per my earlier findings. I have found that the applicant’s fear of economic hardship including due to his family’s political background, his age or other factors, does not reach a threshold of constituting a ‘real chance’ of ‘serious harm’ under the refugee criteria.
114. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. That reasoning appears equally applicable to the now codified statutory refugee criterion in s 5J(1)(b) of the Act.[37] A ‘real chance’ has been found to be one that is not remote or insubstantial or a far-fetched possibility and a well-founded fear of persecution may exist even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 279.
115. As I am not satisfied that the applicant faces a ‘real chance’ he will experience serious harm in Vietnam because of a risk of economic hardship, including due to his family’s political background, his age or other factors, I am also not satisfied that he faces a ‘real risk’ of significant harm for the purposes of the complementary protection criteria.
116. I have cumulatively considered the applicant’s claims regarding his unpaid debt and his economic hardship claims and I am not satisfied that considering the combination of these claims that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk[38] that he will suffer significant harm for any of these reasons, or any other reason, in Vietnam.
117. I also note that under s 36(2B)(c ) the definition of ‘significant harm’ excludes risks faced by the population of the country generally and requires an applicant to demonstrate risks that are faced by the applicant personally. There is no information before me suggesting that the applicant faces any personalised risk in the current economic or political context in Vietnam beyond those already assessed above.
[35] See for example, Bank of India rates in Ho Chi Minh City Interest Rate - BOI Vietnam.
[36] See DFAT Country Information Report Vietnam, 19 February 2025, [3.176].
[37] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169] and [1180]).
[38] A real risk, as with a real chance, being one that is not remote or insubstantial or a far-fetched possibility, Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
CONCLUDING PARAGRAPHS
118. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 22 May 2025
Representative: Not applicable
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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