2409070 (Refugee) - [2025] ARTA 2100

2409070 (REFUGEE) [2025] ARTA 2100 (22 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2409070
Tribunal:General Member T H R Baggiano
Date:22 August 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 22 August 2025 at 4:41pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion – democracy and human rights – business impacted by local authorities and gangs – family warned – mental health – application prepared by another person without applicant knowing contents, and claims abandoned – business downtown during and after COVID pandemic – loans from family, friends and loan sharks – threats but no harm – applied for work rights to repay debt – approaches but no threats to wife – lower earning potential – country information – police actions against illegal money lenders – economic conditions apply to population generally – work history, skills and employment prospects – two separate applications for review – first finalised and no jurisdiction for second – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5)(b), (c), 5LA, 36(2)(a), (aa), (2A), (2B), 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 on 17 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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. The decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Vietnam, applied for the visa on 11 November 2023. 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.
The applicant appeared before the Tribunal on 22 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant is a [Age]-year-old national of Vietnam.
The applicant has claimed his place of birth as Ha Tinh, his ethnicity as Kinh and his religion as Catholic.
The applicant last arrived in Australia [in] May 2023 as a holder of a Visitor (subclass 600) visa.
The applicant provided a copy of the passport biodata page of his Vietnamese passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Vietnam and there is no information before me to the contrary. I find that the applicant is a citizen of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his protection claims.
Evidence before the Department
In his protection visa application, the applicant made the following claims:
a.When still a teenager at school, the applicant was aware that Vietnam was under Communist regime laws;
b.As students, they did not have rights to raise any opinions to advocate for change or to promote democracy or human rights;
c.Since starting his own business, he was impacted by local authorities and ‘outlaw gangs’ who collected ‘protection money’;
d.His family often opposed government policy and demanded change;
e.The local authority discriminated against people and where they came form;
f.His family became scared and ‘mental issues came up’;
g.He has no hope in a communist country and has sought to travel abroad for a better life where he can exercise freedom of speech;
h.His family was warned about not opposing government policies, otherwise they would be jailed;
i.The government has no tolerance on these political issues as many citizens have been jailed simply for giving their opinion on political issues on Facebook;
j.‘Debt collection outlaws’ are after his family and often threaten their lives;
k.There is no hope to move around the country as the same communist laws apply across the country. The government would also ban any citizen who opposed them from moving around;
l.‘Loan owners’ have eyes everywhere and he cannot escape from them;
m.As a mature-aged person who strongly opposes the current Vietnamese regime, particularly in relation to the lack of freedom of speech, returning to Vietnam would be ‘the end’;
n.Authorities would take further action to stop the further spread or promotion of democracy and human rights for Vietnam;
o.Debt collection gangs would cause mental issues and threaten his life on a daily basis;
p.Authorities always watch and look out for spies who return to Vietnam after a period of time abroad;
q.The country does not provide for freedom of religion;
r.The applicant believes he would be mistreated upon return. His family have been the main targets for the local authorities on a daily basis;
s.The authorities have either threatened them or demanded financial payments;
t.The communist party is always saying one thing but doing another and citizens are afraid of speaking up otherwise they would be arrested.
On 9 March 2024, the delegate wrote to the applicant requesting further information under s 56 of the Act. The delegate advised that the applicant’s claims lacked substantial details and that it was unclear from his written claims what mistreatment he experienced and whether the harm he fears amounts to serious or significant harm. The delegate stated that the lack of detail or evidence raised concerns about the genuineness of the applicant’s claims. The delegate invited the applicant to provide further information in response to a list of specific questions.
The applicant did not respond to the delegate’s request.
The applicant was not offered an interview with the delegate.
Evidence before the Tribunal
Applicant’s oral evidence at hearing
Preparation of protection visa application
The applicant relied on a work colleague, known to him as [Mr A], to prepare and submit his protection visa application.
He explained that he wanted to apply for a visa to stay in Australia to work. In Vietnam, he was in debt, so he wanted to work in Australia to pay off that debt.
After the applicant explained his situation, [Mr A] recommended the protection to him and advised him that he could be sponsored to stay in Australia.
The applicant is not aware of the exact details in his protection visa application, however, [Mr A] told him that to lodge the protection visa application, he should mention financial, political and religious matters.
The applicant was reliant on [Mr A] to assist him with the protection visa application as he had no English language abilities and did not have any understanding of the Australian immigration system.
The applicant has not read his protection visa application. While he is aware that the Department has refused his protection visa application, he does not know the reasons for the refusal.
The applicant was in contact with [Mr A] until the beginning of 2024. After his friend moved away, they have lost contact.
Personal details and family background
The applicant’s parents reside in Vietnam.
The applicant has a wife and [children]. His wife resides in Vietnam with two children. They have one child who is studying in [Country] and another currently studying in Australia.
I noted that in the applicant’s protection visa application, he had stated that his relationship status was ‘separated’. The applicant clarified that this was incorrect and that he is still married to his wife.
The applicant’s wife current works in Vietnam. The applicant explained that this was due to his money problems.
In relation to education, the applicant completed high school in Vietnam. In relation to employment, the applicant ran his own [work task] business where he employed staff and had his own machinery. Through that business, he and his wife were able to support their children, including their studies abroad. After the COVID-19 pandemic, there was a downturn in business which resulted in a lot of difficulties. He established the business in 2016.
During the pandemic, the applicant continued to operate the business, but from around 2023 to 2024, his financial situation worsened as many customers were also in financial hardship, resulting in contracts with the applicant being terminated. The applicant explained that it was at that point where he reached bankruptcy.
When the business was still profitable, he and his wife were bringing in profits or around VND 100 to 120 million each per month.
The applicant is currently working in the [work sector] in Australia and earns around AUD $5,000 to $6,000 per month. He uses part of his earnings to support his children’s studies in [Country] and Australia.
Reasons for leaving Vietnam
As the applicant had indicated that he did not know the exact details of the claims in his protection visa application. I summarised the written claims for the applicant.
After listening to the summary of the written claims, the applicant confirmed that he had never spoken out about the Vietnamese government, had been approached or had issues with local authorities and had never developed mental health issues. He stated that local authorities have always been supportive, particularly when he needed any certificates or paperwork. He confirmed that he wished to abandon all claims regarding opposing the Vietnamese government.
He emphasised that he has never engaged in political activities nor opposed the Vietnamese government. He confirmed that he loves his country and respects its leaders. He has never raised a voice of opposition regarding Vietnam or its leaders. He prays for his country and its leaders every day. He only has worries about his family and his personal loan and debts.
In relation to the written claims, the applicant said that he has been approached by gangs but that was in relation to his debt. He went on to say that gangs just threaten but the did not do anything. He said that the gang’s conduct is not that significant. If rules are followed, then things are quite peaceful.
The applicant explained that when he came to Australia to visit his son who is studying in Australia, he had a lot of financial difficulties at the time. His friends noted his ability in [work task] and told him that he would be able to work in Australia. This then led to the applicant receiving help to apply for a visa to allow him to work in Australia, support his family and pay back some of his debt in Vietnam. He appreciated his friends’ advice and guidance as it has allowed him to take care of his family while reducing the worries of his debts.
The applicant stated that it is the custom of Vietnamese people to care for their children, allow them to study and follow them dreams. For the applicant’s children, that included a dream to study abroad, so he wanted to support them to study.
I asked the applicant to tell me about how he accrued his debt. He stated that in 2023 when his son came to Australia to study, the applicant’s income from his business was gradually decreasing. At the end of 2024, his situation was close to bankruptcy. He had to sell his vehicles, machinery and shop to try to pay off his loans. Through the sale of his assets, he and his wife were able to raise approximately VND 700 to 800 million but it was not enough.
The applicant had taken out many different loans, some with family and friends but the majority with loan sharks. He was unable to obtain loans from banks as they require a lot of documentation.
At the end of 2024, the applicant estimates that his total debt came to the value of VND 6 billion.
The interest rates on his loans were between 10 and 20 per cent, with payment due on a monthly basis. He has not been able to pay off his debt to loan sharks as he is supporting his children through their studies. He is concerned about the debts to loan sharks due to the high interest rate charged.
He has paid back a personal loan he took out with one of his cousins and this amounted to VND 200 or 300 million. In relation to his debts to family or friends, he is less worried about these as they understand his situation.
Asked whether he has any documentary evidence of the loans he secured from loan sharks, the applicant responded by saying that the paperwork is kept in his safe in Vietnam. He did not bring the documentation with him to Australia.
Asked whether the loan sharks have contacted the applicant due to his lack of repayments, the applicant stated that he did not give them his Australian telephone number, so they are unable to contact him. He ceased using his Vietnamese telephone number.
Asked whether the loan sharks ever confront him or try to contact him while he was in Vietnam, the applicant stated that they did not have the chance to because he only became incapable of repaying the debt when he was already in Australia. Prior to that, while he was still in Vietnam, he was somewhat able to manage repayments. After arriving in Australia, he recalls his wife telling him that they would no longer be in a position to repay the loans.
I noted that at the beginning of the hearing when I asked the applicant if he had had issues with local authorities or gangs, he said that he had some issues with gangs who were threatening him but that things were generally peaceful. I asked the applicant whether the dealings with gangs were related to his debt. The applicant stated that the gang was related to the debt to loan shark debts. Loan sharks would not be able to operate without connections to gangs. He explained that when he was in Vietnam in around 2023, the gang threatened to confiscate his assets if he could not repay the debt. The applicant told the gang members that he would try his best to repay on a monthly basis. They allowed him to continue working so that he could make those promised repayments. For some time, the applicant was able to manage monthly repayments but that was not the case when he came to Australia.
Asked whether the applicant’s wife has been confronted or approached by the loan sharks or gang members, the applicant answered in the affirmative. However, he clarified that they did not threaten her as that would be considered illegal. He also noted that high-interest loan shark loans are also illegal, so the loan sharks could not really do anything of substance.
The applicant also explained that he has very close friends in the public security division of his local police station. After he departed for Australia, he asked his friends to watch over his wife. As the law is quite tight in Vietnam, if there are any problems from loan sharks, then there would be protection from local authorities. Due to the protection offered by his friends, he did not need to worry about his wife.
Asked whether the applicant sought help within Vietnam when he was personally approached by the loan sharks and gang members, the applicant stated that he sought help from his cousin who also works in the local police station as a personal favour.
Asked whether the applicant ever relocated to another part of Vietnam to avoid harm, the applicant said that he did not. He stated that he did not need to while he was still in Vietnam as he was still managing to make repayments.
Asked what the applicant thinks would happen to him if he returned to Vietnam, the applicant stated that he just wants to be able to pay back the money he borrowed. He is in debt due to going bankrupt and he sees that as being his own fault. He owes the people he borrowed money from the courtesy of paying back the loans. He also wishes to have some savings to support his children.
Asked if the applicant thinks he would suffer harm or mistreatment, he stated that he does not fear harm or mistreatment from local authorities. However, because of his debt to loan sharks, he is certain that they would make things difficult for him. They would get the money one way or another. He does not know what lies ahead for him but he knows that they would find a way to recover their money.

I asked the applicant whether he thinks he would still be harmed or mistreated by loan sharks and gang members although he has connections in the public security division of the police and despite loan shark operations being illegal. The applicant’s response was that he thinks there are still ways.
Asked whether the applicant thinks authorities in Vietnam could protect him, the applicant said that there is some sort of protection but it is not round-the-clock and not foolproof.
Asked whether the applicant thinks he could relocate to another part of Vietnam to avoid harm, the applicant answered in the negative. He explained that he does not have the financial means to move to a different area.
Issues put to the applicant for comment
I discussed with the applicant that his written claims were not his own and that all details regarding his debts and loans were only disclosed during hearing. I explained that under s 367A of the Migration Act, the Tribunal is able to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence not presented, before the delegate made its decision.
When invited to comment, the applicant stated that he did not know or understand what was in his protection visa application. His friend, [Mr A], pushed him to include a claim regarding opposition of the Vietnamese government and political activism. The applicant reiterated that he does not oppose his government or its leaders. He is an exemplar citizen and has never had troubles with the law or caused issues when he was still in Vietnam. He respects his country and is a patriot. [Mr A] had assured him that all would be fine, and he trusted [Mr A] at the time.
I discussed with the applicant that he had confirmed during hearing that he had paperwork for his loans to loan sharks. I explained to the applicant that according to country information, authorities have made efforts to tackle illegal money lenders and had also set up some special police units for this purpose. The authorities have shown a willingness to police illegal money lenders, and prosecutions have occurred. With this country information, I might take this to mean that the applicant might be able to seek protection from authorities.
When invited to comment, the applicant stated that he does not have fears or being harmed or being in a position where he would be in real danger. His situation has arisen because he has taken out loans and it is his responsibility to pay back the loan. Without the means or capacity to pay the loans back, it causes him to worry. His situation is not about safety per se.
I asked the applicant if there are any reasons he cannot service the loan from Vietnam, and why he feels that he needs to be in Australia to do so. I noted that his skills and expertise in [work task] can be used in either country.
In response, the applicant stated that if he were to return to Vietnam, he would need to seek employment as he no longer owns his business. The income that he could earn in Vietnam would not be at the same level as what he earns in Australia. He stated that in Australia, he works and declares and pays his taxes. With a Vietnamese income, he would not be able to support his children’s studies.
I explained to the applicant that fear of economic insecurity and lower wages in Vietnam in comparison to Australia may not be for one of the five refugee reasons mentioned at the beginning of the hearing. Further, the economic conditions in Vietnam apply to the broader Vietnamese population. As such, this might not amount to serious or significant harm.
In response, the applicant stated he only hopes that the Department, Tribunal and the Australian government will allow him to stay in Australia for a while to work so that his children will not need to suspend their studies, which would then impact their future prospects. He said again that he is able to support his family while he is working in Australia, that he has declared his taxes each year and complied with all Australian laws.
Other administrative issues discussed with the applicant
I noted that the applicant had lodged two separate review application with the Tribunal in relation to the same protection visa refusal decision. The first review application was lodged on 23 April 2024, and the second review application was lodged on 1 May 2024.
I explained to the applicant that I would deal with and finalise his first review application only, and that I have no jurisdiction to deal with the second application given that only one valid review application can be lodged with respect to a protection visa refusal decision.
REASONS AND FINDINGS
Credibility and findings of fact
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, pages 43-44.
In relation to the applicant’s late declaration of his core claims regarding his debts, I have taken into consideration and accept that the applicant’s lack of knowledge of the Australian immigration system and lack of English language ability led him to being reliant on [Mr A] who advised him to lodge a protection visa application, and to include claims that were not his own. During hearing, the applicant proactively explained that the written claims were not relevant to him and confirmed that he wishes to abandon the claims. I have not made any adverse credibility findings in this regard.
The applicant was able to answer my questions spontaneously during hearing and did not seek to exaggerate any of his claims.
Considering the above, I accept the following claims to be credible:
a.The applicant owned a successful [work task] business in Vietnam from 2016;
b.He hired staff and had his own machinery as part of this business;
c.In around 2023 to 2024 after the COVID-19 pandemic, the business started to decline as many of the applicant’s customers were also in financial hardship;
d.The applicant nearly reached the point of bankruptcy and was forced to sell assets, including his machinery and his business. However, the funds raised from the sale of assets was not enough to cover his debts;
e.The applicant loaned various amounts from friends, family and loan sharks;
f.The applicant estimates that his total debt by the end of 2024 came to VND 6 billion;
g.The applicant has paid off part of his debt to a relative but has not been able to pay off his significant debts to loan sharks due to the high interest rates imposed;
h.In 2023, gang members associated to the loan sharks approached the applicant and threatened to take his assets, however, they left him alone after he committed to working to make repayments each month;
i.After the above approach, the applicant also sought help from his cousin who works in the public security division of his local police station;
j.In 2023, the applicant came to visit his son in Australia who is currently a student;
k.After telling his friends about his situation, they advised him to stay and work in Australia by applying for the protection visa;
l.The application works in Australia in the [work task] industry and uses part of his earnings to supports his children’s studies;
m.The applicant’s wife has been approached by the loan sharks and gang members but they did not threaten her;
n.The applicant sought the help from friends who work in the public security division of his local police station and asked them to look after his wife;
o.The applicant believes that the loan sharks will find one way or another to recover the debt from the applicant.
I do not find the following claims to be credible given that the applicant has sought to abandon the claims which were written by his friend, [Mr A], and not reflective of the applicant’s own circumstances:
a.The applicant opposed the Vietnamese government;
b.His family spoke out against the Vietnamese government and were warned not to do so otherwise they would be jailed;
c.The applicant’s business was impacted by local authorities and gangs who asked for ‘protection money’;
d.The local authorities discriminated against people and where they came from which resulted in the applicant’s family becoming scared, and the applicant developing mental health issues;
e.Debt collectors and gangs have threatened his family’s lies;
f.The applicant believed that the Vietnamese government restricted freedom of speech and religion.
As the applicant has abandoned the claims protection visa application, these will not be dealt with further, and I find that there is not a real chance of serious harm or real risk of significant harm for these reasons should the applicant return to Vietnam.
Refugee criterion assessment
To be eligible for grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Vietnam, and owing to that fear, is unable or unwilling to avail himself of the protection of Vietnam. This requires me to be satisfied that there is a real chance the applicant would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. An applicant may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent.[2]
Claims regarding fears of loan sharks
[2] Chan Yee Kin v MIEA (1989) 169 CLR 379.
According to the Department of Foreign Affairs Country Information Report on Vietnam, loan sharks operate in Vietnam and were more prevalent in Ho Chi Minh City and other southern provinces, and more hidden in Hanoi, where, as the administrative capital, security was tighter. Loan sharking is a countrywide problem with organised criminal syndicates providing loan services to anybody who needed them.[3] In-country sources reported in October 2023 that the Government of Vietnam had take measures against loan sharks in recent years, including by tightening conditions for debt collection companies.[4] According to the United Kingdom’s Home Office, Vietnamese authorities have made efforts to tackle illegal moneylending with some provinces setting up special police units to address the problem.[5] According to some reports, police are proactive in investigating illegal moneylending networks and prosecution of these networks has occurred.[6]
[3] DFAT Country of Information Report – Vietnam, 19 February 2025, paragraph 3.176.
[4] DFAT Country of Information Report – Vietnam, 19 February 2025, paragraph 3.180.
[5] United Kingdom Home Office Country Police and Information Note, Vietnam: Fear of illegal moneylenders, Version 3.0, February 2025, paragraph 4.1.3.
[6] United Kingdom Home Office Country Police and Information Note, Vietnam: Fear of illegal moneylenders, Version 3.0, February 2025, paragraph 4.1.4.
Whilst authorities have shown a willingness to police illegal moneylending and prosecutions have occurred, apprehending and convicting offenders remains difficult.[7] 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.[8]
[7] United Kingdom Home Office Country Police and Information Note, Vietnam: Fear of illegal moneylenders, Version 3.0, February 2025, paragraph 4.1.5.
[8] DFAT Country of Information Report – Vietnam, 19 February 2025, paragraph 3.182.
There is potential for reprisals for unpaid debts, particularly where the creditor is an organised criminal syndicate. Reprisals might be carried out by individuals hired by creditors to exert pressure on debtors, rather than by the creditor themselves. Reprisals can take various forms, ranging from psychological pressure and public embarrassment to intimidation and violence, although in-country sources said violence is not typically used. Specific reprisals may include property damage, asset seizures, playing of loud music outside debtors’ homes, and sending funeral wreaths to homes or workplaces.[9]
[9] DFAT Country of Information Report – Vietnam, 19 February 2025, paragraph 3.177.
I have taken into consideration the above country information on illegal moneylending. However, I have given more weight to the applicant’s own experiences with loan sharks and associated gangs in his own region and his own circumstances.
The applicant stated during hearing that he does not have fears or being harmed or being in a position where he would be in real danger. He also gave evidence that while his wife was approached by the gang members working for the loan sharks, they did not threaten her given that such conduct is illegal and because it is known that loan shark loans are illegal. Regardless, when I consider the above country information which states that reprisals for unpaid debts can come in a variety of forms, I accept that due to the applicant’s change in circumstances since arriving in Australia (inability to make repayments due to decline and subsequent sale of his business), he may be subjected to forms of physical harassment or ill-treatment from the loan sharks and their gangs if he is unable to repay his debts upon return to Vietnam. However, considering that the applicant is still of working age, has [work task] skills, his wife’s contributions to expenses through her own employment, I am of the view that the applicant would be able to find work in Vietnam to continue servicing his debts, thus lowering the risk of physical harassment or physical ill-treatment to a level that is not significant as per s 5J(5)(b) and (c) of the Act.
Further, the applicant has spoken about having good friends and a cousin that work in the public security division of his local police station in Vietnam. The applicant has relied on these connections in the past when he and his wife were approached by gang members related to the loan sharks. Country information referenced above also reports that Vietnamese authorities are willing and able to tackle illegal moneylending and prosecutions have occurred. One of the main factors which prevents police from prosecuting illegal moneylenders is the lack of documentary evidence of such loans. However, as per the applicant’s own oral evidence, he has evidence of these loans in his safe in his home in Vietnam. As such, I am of the view that the combination of protection from local authorities, including his close connections, as well as the police’s willingness and ability to prosecute illegal money lenders, particularly where there is documentary evidence of the loan, means that the applicant will have access to effective protection measures which are durable as per s 5LA of the Act.
On the basis of the above assessment, I find that there is not a real chance that the applicant would be subjected to serious harm due to his debts.
Claims relating to lower earning potential in Vietnam
While I acknowledge the applicant’s concerns regarding lower wages in Vietnam, I am required to determine whether the economic harm the applicant fears is for any of the reasons set out in s 5J(1)(a) of the Act, namely race, religion, nationality, membership of a particular social group or political opinion. In the case of Applicant A v MIEA,[10] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, membership of a particular social group or political opinion. As discussed with the applicant at hearing, the economic conditions and lower salaries in Vietnam (in comparison to Australian salaries) applies to the broader Vietnamese population. As such, I find that the harm feared by the applicant is not for any of the reasons set out in s 5J(1)(a).
[10] (1997) 190 CLR 225 at [258].
I find that the applicant does not have a well-founded fear of persecution of persecution and is not a refugee as defined in s 5H(1) of the Act.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Under the complementary protection criterion, I need to consider whether the applicant has a real risk of suffering significant harm upon return to Vietnam.
‘Significant harm’ is defined exhaustively under s 36(2A) of the Act. A person will suffer significant harm if they will be arbitrarily deprived of their life, the death penalty would be carried out on the person, the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
Despite the applicant stating during hearing that he does not have fears or being harmed or being in a position where he would be in real danger, I have, again, taken into consideration the fact that his situation has changed since he entered Australia, being that he has claimed that he has become incapable of repaying his debt to the loan sharks. As country information states that reprisals for unpaid debts can come in a variety of forms, I have accepted that the applicant might be at risk of harm upon return to Vietnam. In assessing this risk of harm under s 36(2A) of the Act, I find that the potential harm does not constitute arbitrary deprivation of life, being subjected to the death penalty or being subjected to torture.
In relation to whether the potential harm could amount to cruel or inhuman treatment or punishment or degrading treatment or punishment, in the applicant’s oral evidence, he stated that he received threats from gang members that they would take his assets if he did not make repayments. While the applicant has expressed that he is worried about his financial situation, I do not believe that seizure of assets would inflict a level of severe pain or suffering or cause extreme humiliation as such an act is expected from lenders, illegal or legal.
However, I accept that there may be risk of reprisal by the loan sharks and their gangs by way of physical or mental violence and public humiliation should the applicant be unable to make monthly repayments or sufficiently service the debt. Despite this risk of harm, I need to assess whether the applicant could obtain protection from authorities in Vietnam such that there would not be a real risk of the applicant suffering significant harm as per s 36(2B) of the Act. Based on the applicant’s oral evidence, he has connections within the police force by way of friends and a cousin who he has asked for assistance in the past. Additionally, the country information referenced above reports that Vietnamese authorities are willing and able to tackle illegal moneylending and prosecute illegal moneylenders. While investigation and prosecution of illegal moneylenders are usually hampered by the lack of documentary evidence of loans, this would not apply in the applicant’s situation as he has given evidence to say that he has documentary evidence of the loans which are kept in his home in Vietnam. Based on the applicant’s additional access to law enforcement officers who could provide physical protection, the Vietnamese police’s willingness to tackle illegal money lending operations by way of prosecution and the applicant’s evidence of his loans which would help police prosecute the loan sharks, I am of the view that the applicant’s ability to obtain protection from authorities in Vietnam would be such that there would not be a real risk of the applicant suffering significant harm. I find that there is not a real risk that the applicant will suffer significant harm if returned to Vietnam.
Claims relating to lower earning potential in Vietnam

While I recognise the cultural and familial obligation the application has towards his children, the harm that the applicant fears in relation to the economic conditions and lower earnings in Vietnam and its impact on his ability to support his family does not constitute significant harm as conditions resulting from general economic and social conditions apply to the Vietnamese population more broadly and is not faced by the applicant personally, and would not be deemed ‘degrading treatment’ or fall within any of the other types of harm for the purposes of s 36(2A) of the Act.
For the reasons given above, I am not satisfied 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 of significant harm.
I do not consider the applicant is a person in respect of whom Australia has complementary 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
T H R Baggiano
General Member
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.
…