2416849 (Refugee) - [2025] ARTA 1831

2416849 (REFUGEE) [2025] ARTA 1831 (7 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Linh Minh Tran (MARN: 0958538)
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2416849
Tribunal:General Member M Bruce
Date:7 August 2025

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

Statement made on 07 August 2025 at 1:56pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – human and democratic rights and government corruption – fear of harm from debt collection gangs – no further information provided, consent to decision without hearing and request for referral for ministerial consideration – could apply for partner visa but subject to no further stay condition and waiver not sought – no unique or exceptional circumstances – possibility of applying directly – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 348A(1), 351
Administrative Review Tribunal Act 1958 (Cth), ss 9, 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Davis v MICMSMA [2023] HCA 1
Mohammed v Minister for Immigration [2017] FCCA 2356
2010120 (Refugee) [2025] ARTA 550
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 21 May 2024 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 11 June 2023.
The applicant’s claims for protection, as summarised in the delegate’s decision, are that:
(a) The applicant did not have rights to raise any opinion for any democratic or human rights.
(b) The government is corrupted, making all the citizens suffer more particularly during COVID-19.
(c) The debt collection gangs will continuously cause mental issues.
(d) The applicant sees no hope in the communist country.
(e) The authorities cannot protect the applicant as the authorities would not want any bad actions to cause instabilities to the current system.
(f) The applicant cannot relocate within Vietnam as the same laws are imposed uniformly across the country.
On 20 April 2024 the applicant was sent correspondence under section 56 of the Act advising the applicant that their claims lacked substantiation or corroborative evidence in support of those claims and inviting them to provide the same.
This correspondence further advised the applicant that the lack of substantiation of their claims or corroborative evidence in support of those claims gave the delegate cause to doubt the credibility of those claims.
This correspondence also advised the applicant that, if they could not provide further substantiation of their claims or corroborative evidence in support of those claims, they should provide a detailed explanation of why they could not provide the same, and of the efforts they made to provide this.
This correspondence also informed the applicant that, if they did not respond to the correspondence within the specified time frame, the department could determine the application on the information presently before it.
The applicant did not respond to this correspondence.
The delegate refused the application on the basis that the applicant’s claims were not credible.
Applicant’s claim before the Tribunal
On 12 June 2024 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision.
On 14 October 2024, the AAT ceased to have effect, and the Administrative Review Tribunal (the Tribunal) came into effect.
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1.) Act 2024 (the Transitional Act), applications made to the AAT that were not finalised prior to 14 October 2024 are taken to be applications made to the Tribunal.
Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal and the Tribunal is authorised to continue and finalise such proceedings in accordance with the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
On 24 June 2025 the applicant’s representative filed written submissions setting out the applicant’s request that the Tribunal refer the matter for Ministerial Intervention under section 351 of the Act and the grounds upon which the applicant asserted there were unique or exceptional circumstances that merited the referral.
The applicant appeared before the Tribunal on 1 July 2025 for a directions hearing.
The Tribunal sought to confirm whether the applicant maintained their substantive claims for protection as expressed in the delegate’s decision. The applicant’s representative indicated that the applicant maintained those claims.
The Tribunal sought to confirm how the applicant wished to proceed with their application before the Tribunal. The applicant’s representative indicated that the applicant requested a decision on the papers and that the Tribunal refer the application for Ministerial Intervention under section 351 of the Act. The applicant’s representative further indicated that the applicant tendered nothing further in support of their substantive claims for protection.
The Tribunal noted that, in considering the applicant’s Ministerial Intervention under section 351 of the Act, the Tribunal would be obliged to have regard to the Ministerial Guidelines,[1] which proscribe the circumstances in which the Minister does and does not wish to consider intervening.
[1] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
The Tribunal noted that one of the circumstances prescribed by the Ministerial Guidelines is where the applicant could apply for a Partner visa onshore but for being subject to an 8503 (no further stay) condition and a request for a waiver of that condition has not been sought or decided.
The applicant’s representative confirmed that the applicant was subject to an 8503 (no further stay) condition and that no such waiver had been sought by the applicant.
The Tribunal noted that the Ministerial guidelines indicate that, in such circumstance, the Department will finalise any referral by the Tribunal without bringing it to the attention of the Minister and expressed its view that it would not be appropriate for the Tribunal to consider such a request in the circumstances.
The Tribunal expressed its view that, on the material presently before it, it was likely to affirm the Department’s decision if requested to determine the application on the papers.
The applicant confirmed that they requested a decision on the papers and that the applicant tendered nothing further in support of their application.
The Tribunal granted the request for a decision on the papers as, having considered section 106(3) of the ART Act, it found that it could reach a decision without a hearing.
The Tribunal was further satisfied that the respondent is a non-participating party in accordance with section 348A(1) of the Act and that the applicant had requested the Tribunal to make its decision without a hearing for the purposes of section 106(3)(b)(ii) of the ART Act.
The Tribunal also had due regard to the decision of 2010120 (Refugee) [2025] ARTA 550 and was satisfied that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding in accordance with section 106(3)(c). Namely, what the applicant’s claims are and whether the applicant meets the criteria for the grant of a protection visa in section 36(2)(a) or section 36(2)(aa) of the ART Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The applicant was on notice as of receipt to the section 56 correspondence that their claims lacked substation or corroborative evidence in support of them and that this gave the delegate cause to doubt the credibility of those claims.
The applicant was further on notice as of receipt to the section 56 correspondence that, if they could not provide further substantiation of their claims or corroborative evidence in support of those claims, they should provide a detailed explanation of why they could not provide the same, and of the efforts they made to provide this.
The applicant was on notice as of receipt of the delegate’s decision that their application was refused on the basis that their claims were not credible.
The applicant was on notice as of their application to the AAT on 12 June 2024 that they could provided further substantiation of their claims or corroborative evidence in support of those claims.
The applicant was on notice as of the direction hearing of 1 July that the absence of further substantiation of their claims, corroborative evidence in support of those claims, or explanation of why they could not provide the same may occasion the Tribunal to form a view that those claims are not credible.
The applicant was provided with an opportunity to provide further substantiation of their claims, corroborative evidence in support of those claims, or explanation of why they could not provide the same.
The applicant has not provided the Tribunal with any further substantiation of their claims, corroborative evidence in support of those claims, or explanation of why they could not provide the same.
The Tribunal finds that the lack of substantiation of the applicant’s claims, corroborative evidence in support of those claims, or explanation of why the applicant could not provide the same is such that the Tribunal is not satisfied that their applicant’s claims are credible.
There being no other claims before the Tribunal, or appearing to the Tribunal on the material before it, the Tribunal finds that the applicant does not meet the refugee criterion in s 36(2)(a), or the alternative criterion in s 36(2)(aa).
Ministerial Intervention.
Pursuant to section 351 of the Migration Act 1958 (Cth) the Minister may, if they think it in the public interest to do so, substitute for a decision of the Tribunal a decision that is more favourable to the applicant.
The Minister has published Ministerial Guidelines indicating the circumstances in which the Minister may wish to consider intervening in a case and the circumstances in which the Minister does not wish to consider intervening.[2]
[2] Department of Home Affairs, Minister's Guidelines on Ministerial Powers (s351, s417 and s501J), (Ministerial Guidelines, 29 March 2016)
Section 7 of the Ministerial Guidelines specifies circumstances where the Minister has predetermined that it is inappropriate to consider Ministerial Intervention and directed that the Department will finalise such case without referral to the minister.
The Tribunal notes the recent decision of the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 which confirmed that the Minister may exercise the power to make such a procedural decision in advance, so as to never consider applications from a specified class of case.[3]
[3] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 1 [16 per Kiefel CJ, Gageler and Gleeson JJ
One of the circumstances proscribed by section 7 is where the applicant could apply for a Partner visa onshore but for being subject to an 8503 (no further stay) condition and a request for a waiver of that condition has not yet been sought or decided.
Section 8 of the Ministerial Guidelines authorises the Tribunal to refer an adverse decision to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in ection 4 of the Ministerial Guidelines.
The Tribunal notes that it is not directed in section 8 to have regard to the circumstances proscribed by section 7 of the Ministerial Guidelines and, accordingly, it may refer an adverse decision to the Department if satisfied that there are unique or exceptional circumstances as described in section 4 of the Ministerial Guidelines in circumstances that are prescribed by section 7 of the Ministerial Guidelines.
The Tribunal notes that no duty arises during the Tribunal’s review of a decision of a delegate to consider a request that the Tribunal refer an adverse decision to the Department.[4]
[4] Mohammed v Minister for Immigration & Anor [2017] FCCA 2356 [29] per Driver J
While it remains open to the Tribunal to refer an application to the Department in circumstances prescribed by section 7 of the Ministerial Guidelines where it believes that the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Guidelines, it is not appropriate for the Tribunal to do so having had regard to:
a) Tribunal’s objectives in section 9 of the Administrative Review Tribunal Act 2024 (Cth), and
b) The Ministerial Guidelines which indicate that the Department will finalise such a referral by the Tribunal without referral to the Minister.
The Tribunal notes that the applicant does not require the Tribunal’s imprimatur to seek Ministerial Intervention, and that the decision of this Tribunal does not prejudice the applicant’s ability to do so.
Having had regard to the matters set out above the Tribunal finds that it is not in the interest of the due administration of the Tribunal that it should consider whether this decision should be referred to the department pursuant to section 8 of the Ministerial Guidelines.
DECISION
The Tribunal affirms the decision under review.
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.
…