2412566 (Refugee) - [2025] ARTA 1827

2412566 (Refugee) [2025] ARTA 1827 (1 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2412566
Tribunal:General Member R Hampson
Date:1 September 2025

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

Statement made on 01 September 2025 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – anti-revolutionary grandfather – discrimination to future generations – escaping poverty – new claims – financial debt – fears gangster moneylenders – lack of detail – credibility concerns – no harm to family – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2024 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 18 January 2024. 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 was invited to a hearing on 9 June 2025 by MS Teams video. The applicant responded to the Hearing Invitation Response Form on Friday 6 June 2025 stating by ticking a box marked ‘yes’ that he would be attending the hearing on 9 June 2025, he also provided comment to the question on this form which states, ‘do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing notice?’ The applicant responded with (in his own words), ‘can you arrange for mr to have an online hearing? Big thank sir/madam’. The applicant did not appear at this hearing at the designated time and date. The applicant was then offered a further hearing and he appeared before the Tribunal by MS teams video on 23 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter win the Vietnamese and English languages and appeared by MS teams video.
The applicant was invited to a further hearing on 21 July 2025 to clarify several points. The applicant did not appear at this video hearing and a voice message was left on his phone with the assistance of the interpreter in the Vietnamese language. On 24 July 2025 the Tribunal received a response to hearing request form for the hearing scheduled for 21 July 2025 in this form the applicant stated, by ticking a box marked ‘yes’ that he would attend the hearing and responded to the question, ‘do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing notice?’ the applicant stated in his response,
‘I would like to respectfully request an interpreter for my upcoming hearing, as I am not fluent in English and unable to fully understand or speak during the proceedings. Please arrange a Vietnamese interpreter for me’. Thank you for your understanding and support. ‘
This further hearing was scheduled for 1 September 2025. The applicant was sent 2 SMS hearing reminders 5 days and 1 day prior to the hearing and was contacted by a Tribunal officer to conduct a technology test call on 26 August 2025 to which he did not answer the call. At 9:30am on 1 September 2025 a Tribunal officer called the applicants phone, the applicant did not answer the call and she was unable to leave a message. The presiding member has then decided to proceed with this decision with the evidence and testimony available.
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be [an age] year old national of Vietnam.
He claims he was born in Dong Anh, Hanoi, Vietnam and his ethnicity is Vietnamese and does not practice a religion.
The applicant came to Australia first [in] August 2023 on a visitor visa to remain in Australia for 3 months. He applied for a protection visa on 18 January 2024.
The applicant provided a copy of the 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. The applicant also furnished his original passport at hearing which I sighted. I find that the applicant is a citizen of Vietnam, and that Vietnam is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application
In his protection visa application, the applicant claimed that he left Vietnam because his grandfather worked for the Republic of Vietnam in 1974. He said police came to his house to check and look for him and this made him very scared. He feared if he were to return to Vietnam he would go to jail. He stated he did not feel safe anywhere in Vietnam.
The applicant was not invited to attend an interview with the delegate.
The applicant did not provide any further supporting documents to the Department apart from his passport and a bank statement.
On 10 March 2024 the delegate via a letter under s 56 of the Act requested the applicant to provide further information regarding his claims. The applicant did not respond to this request.
The delegate in their findings had concerns about the genuineness of the applicants claims as they lacked detail and were not supported with any evidence. The delegate found the applicants claims not to be credible.
The delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant did not provide any further evidence or submissions before the Tribunal hearing.
Oral evidence at hearing on 23 June 2025
Preparation of the Protection visa application and AAT application
When asked about the preparation of his protection visa application the applicant said he prepared the application using Google translate on his phone. He said he was aware of the content of the application.
The applicant arrived in Australia in August 2023 and lodged his application with the department for a protection visa in January 2024. At the hearing I asked him about the delay in lodging this application and he said he did not know about the visa until he talked with friends who told him about it.
Background in Vietnam
When asked about his family background the applicant stated he was married and had [children of varied ages]. He said his wife had been working as [an Occupation 1] but was not currently working. His children are all studying. His father is deceased (in 2018 from [Medical condition 1]) and his mother now lives with his wife as she is ‘frail with [Medical condition 2]’. He has [a sibling] who lives in ‘Saigon’ and a [sibling] who lives near Hanoi but in another province to the applicant. The applicant states he is in contact with his wife, children and mother on a regular basis by phone and video call.
The applicant and his family of origin are from Hanoi. Since arriving in Australia, he has lived in Brisbane where he has also been working as [an Occupation 2]. He worked in Vietnam doing [Occupation 2] in many different jobs.
The applicant completed year 7 at school.
Reason for leaving Vietnam
When asked his reasons for leaving Vietnam the applicant said he had been told by other people to leave go overseas to escape the poverty. He explained that he then tried ways to leave Vietnam as he did not have money there to study any further. He then said, ‘also for the reasons of my paternal grandfather’. He said he had tried to go overseas many times and this ‘last time I tried my luck with Australia’.
I asked the applicant if he had tried to obtain a visa from any other country and he said he had applied to the labour export program for work in [Countries 1 and 2] but was not successful. I asked the reasons for this not being successful and he said it was because others who apply have money to pay the government bribes to be accepted and he had no money for this.
I asked the applicant if he had suffered harm while living in Vietnam and he said, ‘we (and his family) are too poor and have so many loans and they just accumulate interest and I just want to earn money and people say the best way to earn lots of money is going overseas and work really hard but the money is much more than anywhere else and I need that to help my family, my wife, my children, my mother’.
When I asked the applicant if he had suffered any particular harm whilst living in Vietnam and what he feared if he were to return there. He said, ‘I had to borrow money from those people, underworld people, gangsters, and they just got up so high with interest, I can't afford to pay them and life is so hard and they keep trying to beat us, me, my wife, my children’. He stated he borrowed money initially in 2017 for his father’s medical treatment and then later in 2019 to help his mother with medical treatments and then to help his wife’. He said his wife has low education and has been tricked by other people and has lost money. He said, ‘that was when we were so fed up with just doing physical work and try to change to doing business but because I didn't have knowledge and low education so got tricked by other people and was unsuccessful with our ventures and lost a lot of money’.
The applicant on my questioning stated he had borrowed [amount] VND ($[amount] AUD approximately on current conversion rates) in 2017 and then later borrowed another [amount] VND (approximately $[amount] AUD) in 2019. He explained he borrowed the first sum from ‘the underworld people’ and not a bank as it was too difficult to borrow from a bank as to get an approval involves a bribe. The applicant on my questioning stated he had loan documents he could provide the Tribunal to substantiate these claims.
The applicant said he has only paid the interest required on the 2017 loan and has not repaid any of the principal. The second loan taken out in 2019 was from another money lender he said, in a different province. He said the money lenders for the 2017 loan understood it was for his fathers medical treatment and were initially understanding but after his father died, they became insistent regarding the repayment and ‘threatened to beat us and we’re very afraid’. He said the lenders had beaten he and his wife in 2019 so he borrowed the second loan amount from another money lender and paid some on the initial loan so the ‘beatings eased off’.
He said that the second loan in 2019 was for a business but it collapsed. He said he is now working to pay the interest only on each of these loans and this is [amount] VND (approximately $[amount] AUD each month) on each loan.
I asked the applicant what happened to him when he could not pay the loan principal amounts and he said he was ‘lightly beaten, leaving bruises but they didn’t do anything more physically harming because they are afraid of the law and the government’. He said he didn’t know why they would be afraid of the law and the government.
I asked the applicant if his wife had been harmed whilst he had been living in Australia for the last 2 years. He said they had threatened her and come to her workplace and that made it difficult for her to work anywhere. The applicants wife, children and mother all live in the same house which is his childhood home in Hanoi.
I asked him if he had been to the police about the gangsters and he said no because there is no point as the loan is his issue. I asked if he considered moving to another part of Vietnam to avoid the gangsters and he said he could not as his mother is frail and the ‘gangsters have a network wherever we could go’.
I asked him why he did not raise these claims in his protection visa application and he said he ‘didn’t think of it and just did his application quickly’.
I asked the applicant about the claim he made in his protection visa application to the Department regarding his grandfather being a member of the Republic of Vietnam workforce in 1974 and he said his grandfather died in the Army and this was for the ‘wrong side’ and this meant it was ‘difficult for me and for my children to study or achieve anything in work’. On my questioning about the now 50 years that have passed since the Vietnam war he said, ‘people are based on their records and once you have a record like that in the family then it is very hard for their children and grandchildren to be accepted into a good position to study or in good schools with an anti-revolutionary past’.
I spoke with the applicant about my concerns which are listed below:
a)His initial claim in his protection visa application was regarding his grandfather who he claimed fought for the ‘’wrong side’ during the 1974 Vietnam war. He reiterated that this made it hard for he and his family to secure skilled employment as they were branded by this throughout history.
b)He has brought new claims to the Tribunal hearing regarding the debts to the loan sharks– he said he was just explaining ‘whatever was true’.
c)Evidence of the threats made by the loan shark gangsters – he said he used to have messages from them on his old phone in Vietnam but does not have it anymore.
d)The likelihood of him being able to payback the loans which now total approximately $[amount] AUD. He said if he could stay in Australia to work, he would be able to make more repayments.
e)The loans have not been paid back over an 8 year period with only very minimal interest paid on a large sum of money. He said the loan sharks want him to pay the money back but because he is paying the interest they still receive a source of income and the loan amount keeps increasing with the interest accrual.
f)You have come to Australia to earn more money in this country. The applicant agreed this was the case but said his employment [in Occupation 2] here was also unstable but he is trying to use the money he earns to pay off the loans.
g)Whether or not he meets the refugee criteria of facing serious harm if he were to return to Vietnam. I reiterated with the applicant that persecution must involve serious harm against a person for reason of their race, religion, nationality, membership of a particular social group or political opinion and that personal debt and insufficient income to support this family might not appear to be directed at the applicant for one or more of the five reasons. He said, ‘there is no way I can earn enough money to pay back the loan (living in Vietnam). I don’t think they will kill us but they might beat us. I hope to earn money to send back to support my wife and children who are still young and I don’t want them to suffer from people going to their house and threatening them, this will affect them mentally’.
h)The applicant came to Australia on a visitor visa and this was at substantial cost- he said he mortgaged the title on his house to have some money. I asked him if he could do this to travel to Australia why had he not done this to pay the loan shark gangsters. He said because his house is worth very little compared to the sum of the loan.
Post hearing submissions
The applicant was requested to provide the Tribunal with evidence of the 2 loans he has spoken about at the hearing. He has provided translated copies of these 2 loan documents.
The first document dated 8 December 2017 states a loan of [amount] VND with an interest rate of 0.004 percent per month within the period of 156 months from the date of the document with the loan purpose for business and medical treatment.
The second document dated 18 June 2019 is for [amount] VND with an interest rate of 0.0018 percent per month with the period of 120 months from the date of the document and the loan purpose is to pay off debt and for business.
Resumed hearing schedule for 21 July 2025
Upon receipt of the loan documents, I had further questions for the applicant and invited his to a further hearing scheduled for 21 July 2025. As the applicant did not attend this hearing on the scheduled date and time this hearing was cancelled. The applicant subsequently emailed the Tribunal on 23 July 2025 attaching a completed hearing response form for the 21 July 2025 hearing to which he states he would attend the hearing by ticking the box indicating ‘yes’ and included the following text in response to the question, ‘Do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing notice?’
‘I would like to respectfully request an interpreter for my upcoming hearing, as I am not fluent in English and unable to fully understand or speak during the proceedings.
Please arrange a Vietnamese interpreter for me.
Thank you for your understanding and support’.
A further hearing was then scheduled on 1 September 2025. The applicant did not attend this hearing at the scheduled time and date. I have therefore made a decision to continue with this decision without being able to fully examine the applicants response to my concerns about the credibility of the loan documents and the loans themselves including the very low interest rate, the very long loan terms (10 years and 12 years) and the very large loan amounts with no guarantor or collateral from a non-institutional formal lender, how he repays the interest amount, how he received the two large sums of money in the first instance, what he used this money for a business and apart from paying toward the first loan with the second loan. I will discuss these points further in more detail later in this statement of reasons.
Despite these opportunities as discussed above the applicant has not provided further evidence or information in support of his claims from the very beginning when he lodged his protection visa application up until the commencement and conclusion of the Tribunal hearing period to which he has been given ample opportunity to attend and discuss his claims fully. Whilst I am aware the language barrier is a difficulty for many applicants in responding to documents and understanding and engaging in proceedings it appears the applicant has been able to engage with the Tribunal at times to respond to documents, comment on them and attend the initial hearing.
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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 367A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
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 the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is a lack of detail in the applicants protection visa application and the applicant explained that he did not know the extent of information he needed to provide and as such I have not initially drawn any adverse credibility inference for the purposes of s 367A of the Act.
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] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.
[1] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees | UNHCR Australia, accessed 26 June 2025.
The applicant has had numerous opportunities to provide the delegate and the Tribunal with evidence and testimony to support his claims and has done so at one hearing however this hearing process was marred by difficulty in communicating with the applicant in that he did not respond to hearing invitations in a timely manner and did not respond to telephone calls thus making it difficult for the Tribunal to determine the credibility of his claims. He has not provided details to the delegate of claims he has made to the Tribunal claiming he did not know this was necessary, he has provided documents to the Tribunal to which I have serious doubts about their legitimacy but could not speak with him about these as he did not attend the two opportunities for a resumed hearing.
As such I have serious doubts about the credibility of the applicants claims in their entirety and have drawn an adverse inference regarding these.
I accept the following claims:
a)The applicant has borrowed two amounts of money one in 2017 and one in 2019 and has likely been paying of the interest accrued on both loans.
b)He has borrowed these monies from money lenders in two different provinces as is noted on the loan documents.
c)The applicant has come to Australia to earn more money than he could in Vietnam for [Occupation 2] jobs.
I do not accept the following claims:
a)The applicant fears he will be jailed if he returns to Vietnam as his grandfather was a member of the Republic of Vietnam workforce during the 1974 Vietnam war. At hearing the applicant did not seek to mention this claim initially and it was only on my questioning after he had spoken of his new claims that this was spoken about.
b)The loan documents supplied by the applicant to the Tribunal in post hearing submissions as evidence of the 2 loans he claims to have taken out. These documents have not been translated by an Australian registered translation service and contain translation that is dubious such as incorrect spelling of the word ‘agreement’. I therefore can give limited weight to these documents. I was also unable to ask him further questions to clarify this point at the resumed hearing as he did not attend.
c)The applicant claims to have borrowed in 2017 [amount] VND (approximately $[amount] AUD at current conversion rates) at an interest rate of 004 percent per month over a term of 156 months (13 years) with no collateral or guarantor for a very significant sum of money. The applicant claims to have only paid the interest on this loan to date and then a part of the principal when he obtained another loan in 2019 from another money lender.
d)The applicant claims then to have borrowed in 2019 a further [amount] VND (approximately $[amount] AUD at current conversion rate) at an interest rate of 0018 percent per month over a term of 120 months (10 years) with no collateral or guarantor again for an even more significant sum of money with him alleging this lender knew this was to pay off the previous debt. The applicant claims to be continuing to pay the interest only on this loan. He has not provided the me with any evidence of this repayment process such as deposits into a bank account or the transfer of funds. I was also unable to ask him further questions to clarify this point at the resumed hearing as he did not attend.
e)The applicant claims to have been lightly beaten because of not paying the principal of the first loan and this is the reason for obtaining the second loan to which he claims he was to use this to payout the first loan but also claims to still owe the principal of the first loan therefore drawing the inference he did not use the second loan to pay off the first loan but rather accumulated two large debts.
f)The applicants family still live in the same home in the same home area of Hanoi, Vietnam and the applicant claims no harm has continued to come to them apart from his wife being questioned at her workplace regarding monies owed. However, the applicant claims he is in danger from the debt collectors I therefore do not accept this claim of physical harm at the hands of the debt collectors to he or his family.
The applicant has further claimed he came to Australia as others had told him the only way he was going to make any reasonable money was to leave Vietnam and as such I have considered that the applicant has applied for a protection visa to remain in Australia to earn money only and not because of the fears of harm he claims.
Whilst I am sympathetic to the applicants wish to remain in Australia to earn more money than he can in Vietnam, I must determine whether the socio 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, political opinion or membership of a particular social group. In the case of Applicant A v MIEA[2], 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, political opinion or membership of a particular social group. As raised with the applicant during hearing, the economic conditions and lack of formal employment opportunities with higher income throughout Vietnam apply 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 ins s 5J(1)(a).
[2] (1997) 190 CLR 225 at 258.
I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I have considered country information regarding loan shark/debt collectors in Vietnam but have been unable to discuss this information with the applicant at a further hearing.
Does the applicant satisfy the refugee criterion for protection?
I have considered if there is a real chance of harm if the applicant were returned to his home area of Vietnam in the reasonably foreseeable future. Based on the evidence before me and the applicants testimony at the first hearing as outlined in this decision, I do not accept there is a real chance of harm to the applicant if he were to return to his home areas of Vietnam in the reasonably foreseeable future.
I am therefore satisfied the applicant does not satisfy the criteria is s 36(2)(a) and as such does not meet the refugee criterion.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Under the complementary protection criterion, I will need to consider whether the applicant has a real risk of suffering significant harm upon return to Vietnam.
Based on the applicant’s evidence at hearing, I find that he will not suffer significant harm by way of being arbitrarily deprived of his life, have the death penalty carried out on him, be subjected to torture, be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment as pers s 36(2A) of the Act.
Section 36(2)(aa) refers to ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’[3]. I have not accepted, for the reasons set out above, that the applicant will suffer serious harm at the hands of money lenders due to the two outstanding debts.
[3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The harm the applicant fears in relation to economic conditions in Vietnam and the inability to secure a well-paying job to support his family or service personal debts do not constitute significant harm as conditions resulting from general economic and social conditions apply to the broader population and would not amount the types of harm set out in s 36(2A) of the Act.
Therefore, I do not consider the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
There is no suggestion that the applicants 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 do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
DATES OF HEARINGS: 9 and 23 June 2025;
21 July 2025 and;
1 September 2025.
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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