2418091 (Refugee) - [2025] ARTA 1980

2418091 (REFUGEE) [2025] ARTA 1980 (10 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2418091
Tribunal:General Member T H R Baggiano
Date:10 September 2025

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

Statement made on 10 September 2025 at 12:57pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – political opinion and religion – democracy, human rights, economic and working conditions, and religious freedom – application prepared by another person with applicant unaware of contents and claims abandoned at hearing – suppression by authorities and loans from loan shark and neighbours – threat, then accident and injury – later threats continuing after departing – inconsistent claims and evidence – money borrowed after accident to pay for medical expenses – no repayments while working in Australia – late claim that high cost of living in Australia leaves nothing to pay debt – written loan agreement provided post-hearing – country information – official actions against loan sharks – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5)(b), 5LA, 36(2)(a), (aa), (2A), (2B), 65, 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 24 May 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 27 June 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 4 September 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 Nghe An, his ethnicity as Kinh and his religion as Catholic.
The applicant arrived in Australia [in] June 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. The original passport was also sighted by the Tribunal on the day of the scheduled hearing. 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, the applicant’s parents told him about the tough Communist regime which was cruel and had no humanity;
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 working in his family business, he was impacted by local authorities – being unfairly treated at work or poor working conditions;
d.His family often opposed government policies and demanded change;
e.The local authority discriminated against people and where they came from;
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 to learn survival skills and to a place where he can exercise freedom of speech;
h.His family had been warned not to oppose government policies, otherwise, they would be mailed just like other citizens who had been jailed for giving an opinion on Facebook;
i.Illegal debt collectors were also after his family and threatened their lives;
j.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;
k.‘Loan owners’ have eyes everywhere and he cannot escape from them;
l.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’;
m.Authorities would take further action to stop the further spread or promotion of democracy and human rights for Vietnam;
n.Debt collection gangs would cause mental issues and threaten his life on a daily basis;
o.Authorities always watch and look for spies who return to Vietnam after a period of time abroad;
p.The communist party is always saying one thing but doing another and citizens are afraid of speaking up otherwise they would be arrested.
On 23 April 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 which raised concerns about the genuineness of his protection claims.
The delegate asked the applicant to provide further information and documentary evidence about what happened to the applicant in Vietnam, including dates and locations of events. The delegate invited the applicant to provide further information relating to his opposition of the Communist Party in Vietnam, how his family were threatened. The delegate invited the applicant to provide further information and evidence regarding his experienced mental health issues due to treatment received from local authorities and debt collectors. The delegate also invited the applicant to provide more information and evidence in relation to his statement that there was no freedom of religion, and how the Vietnamese government policies impacted his religious belief.
The applicant did not respond to the delegate’s request.
The applicant was not offered an interview with the delegate.
The delegate rejected the applicant’s claims in their entirety on credibility grounds and lack of detail or supporting evidence.
Evidence before the Tribunal
Applicant’s oral evidence at hearing
Preparation of protection visa application
The applicant engaged the assistance of a third party, introduced by his friend, to prepare and lodge his protection visa application.
The third party did not consult with the applicant before submitting the protection visa application on his behalf. The applicant was not given a copy of his protection visa application form and is unaware of the claims included in the application.
While the applicant recalls receiving a copy of the delegate’s protection visa refusal decision, he was unable to read it as he cannot read English. He had asked someone else to help him read the decision, but they refused to as they were too busy.
The applicant stated that the same third party that prepared and lodged his protection visa application also prepared and lodged his review application with the Tribunal.
The applicant explained that he was reliant on the third party as he did not have the required English language abilities and did not understand the process.
Personal details and family background
The applicant was born in Nghe An province. From birth, he remained in this province, except for a period of time where he served in the army.
The applicant is separated from his spouse but they were still living in the same house before he came to Australia.
The applicant and his former spouse have three adult children together.
His former spouse, three children and his elderly mother are all still resident in Nghe An province in Vietnam.
All family members, aside from the applicant’s mother, are working in Vietnam.
The applicant contacts his family approximately every two to three months.
In relation to education, the applicant completed [a grade] in Vietnam.
In relation to employment in Vietnam, the applicant worked in a number of jobs as a [trade occupations]. He recalls that his monthly earnings were around VND 10 million per month.
Since arriving in Australia, the applicant has been working for a [factory]. There was a period of time where the applicant was not working due to leg pain. The applicant’s weekly salary is approximately AUD $1,000 or more.
Asked whether the applicant provides any financial support to his family the applicant said, “not really”. He explained that he only sends money home to his mother and children as a gift during New Year’s or other special occasions. Otherwise, he keeps his money in Australia for savings and living costs.
Reasons for leaving Vietnam
As the applicant was unaware of the claims made in his protection visa application, I read out the key points of those claims to him.
The written claims mentioned the inability to speak out against the government or promote human rights or democracy. The claims also referenced a lack of freedom of religion. There is also mention of the Vietnamese government watching out for and looking for ‘spies’ who return to Vietnam after a period of time abroad.
With respect to the above claims, the applicant confirmed that he wished to abandon claims relating to political opinion and religion.
With respect to the reference to the Vietnamese government looking for spies after those individuals return from abroad, the applicant stated that he might have some concerns relating to this.
He also referenced having minor issues with the authorities who allegedly abused their power and suppressed him.
However, the applicant stated that the only problem he had was in relation to a debt he had with a loan shark. He also had an accident in 2022 which resulted in a serious injury to his jaw.
Asked to provide details of his 2022 accident, the applicant stated that he suspected that the accident might have been a measure taken by the debt collector to threaten or warn him, but he acknowledged that he had no evidence of this. The applicant stated that the accident occurred in around March 2022. Only a few days prior to the accident, a person came to the applicant’s home and threatened him. They stated that if he did not repay his debt, he would die.
On the day of the accident, the applicant was on his way home from work. He was riding his motorbike around a corner when a van passed by very closely in front his motorbike. The applicant lost his balance and fell to the ground and became unconscious. When he came to, he was in the hospital and was told that he had been hit by a nine-seater van. He had suffered heavy bleeding, had blood in his mouth and nose, had headaches and was vomiting. At the hospital, the doctors took an x-ray of the applicant which fortunately confirmed that he did not have any brain injuries. However, he had sustained an injury to his jaw.
The applicant stated again that he suspected that the accident was intended to serve as a warning from the debt collectors. He stated that they came to his family home and monitored his activities day and night. They harassed his family and required that the applicant write a promise that he would pay back the money, being VND 500,000 to 1 million per day.
Asked whether the applicant had evidence of the loan, he answered in the affirmative. He stated that the paperwork is in Vietnam. When asked if he could provide copies of the loan documents he stated that he would need to ask his family members to find them and send them over to Australia. I provided instructions to the applicant to ask his family to either provide a scanned copy or take clear photographs of the loan documents and email them across to him.
The applicant advised that his loan with the loan sharks was for the amount of VND $40 million. For every VND 1 million, he was required to pay VND 5,000 per day. The loan amount was given to the applicant in cash. He had to go to the loan sharks to receive the money. There was no collateral provided before the loan sharks released the loan to him. He did, however, need to provide the loan sharks with proof of identity.
Asked when the loan was taken out with the loan sharks, he confirmed that it was on 24 April 2002. I asked the applicant to reconfirm if it was this loan that he had documentary evidence of. His response was that the loan shark did have paperwork for the loan, but only had one copy which they kept. The loan sharks did not allow the applicant to retain a copy.
I asked the applicant whether he had any other loans with any other individuals or organisations. The applicant stated that he had also borrowed VND 5 million each from two neighbours. There was no paperwork for the combined VND 10 million as the loan was between him and neighbours.
I asked the applicant why he had provided two contradictory statements. Earlier in haring, he stated that he had documentary evidence of his loan with the loan sharks and had committed to asking his family to locate the documents so that they could send a copy to him. However, his most recent statement was that the loan sharks retained the loan paperwork but did not give him a copy. The applicant’s response was that he does have documentary evidence for his loan with the loan shark, but there is no paperwork to evidence his loans with his neighbours as they just wanted to help him out.
I asked the applicant again to explain why he had provided contradictory statements about the documentary evidence for the loan shark loan. His response was that perhaps he did not explain things clearly. He confirmed again that he did have a copy of the document.
With respect to the three loans he has partially repaid his loans to his two neighbours. He has paid each neighbour VND 2 million but still owes each neighbour VND 3 million. He confirmed that his neighbours had not caused him any issues, harassed nor harmed him for the outstanding debt. The neighbours had loaned the money to him to help him with his medical treatment. They advised him that he could repay them whenever he had money to do so.
Asked how much of the loan the applicant had paid back to the loan shark, he stated that he had not made any repayments. I queried why the applicant had not made any repayments given that the loan was taken out in 2002. The applicant then stated that the loan was taken out in 2022, rather than 2002. He stated that he had only paid them interest as his income was not enough. He was not able to pay back the principal amount. When paying interest, he would travel to the loan sharks and make those payments.
Asked whether the applicant had ever presented evidence of his loan with the loan sharks to authorities to seek help, the applicant stated that he had not sought help from authorities. He did not dare to do so. If he had provided evidence of the loan, he would have lost his life by the next day.
Given the applicant’s earlier comment that he had some issues with the authorities and that they ‘suppressed’ the applicant, I asked him to provide an explanation and context around this comment.
I asked the applicant to let me know about any instances of harassment or harm and to provide as much detail as possible, including where certain incidents occurred and who was involved.
The applicant explained that approximately three months or more after he took out the loan, the debt collectors came to his home. They told him that the deadline to repay the principal had passed and asked him how he was going to repay the debt. The applicant advised the debt collectors that he was in financial hardship and that he needed more time to work and gradually repay the debt. He also advised them that he had recently loaned some money from his neighbours for medical treatment, and also needed to repay them. He proposed that he would continue to pay the interest and would repay the principal amount later. The debt collectors told the applicant that the interest rate that would be imposed was high and had accumulated under the principal. They asked him to sell his property to repay the debt. However, as the applicant’s elderly mother needed a place to live, he could not sell the home. They then threatened him by saying that if he did not repay the debt, they would take his life.

One day on his way back home from work, the debt collectors confronted the applicant and asked him to follow them to their place. They then placed pressure on him. They intended on taking his motorbike to sell it but realised it was too old to sell. The applicant begged the debt collectors not to take his motorbike as he needed it as a means of transport to get him to and from work. They threatened him again with death if he would not pay back the debt.
Asked about the harm the debt collectors inflicted on him, the applicant stated that they “slightly assaulted” him. When asked to explain what that meant, the applicant said that they punched him in his face and kicked his body. There were three of them.
After arriving in Australia, the applicant realised that the country was very “human and good” and that there was a good government in place to protect people in need. He stated that he was begging the Australian government to protect him and to give him the opportunity to remain in Australia. Whilst living in Australia, he has been able to work and pay taxes so that when he has money, he can pay back the debt and avoid being threatened or even killed by debt collectors. Should he return to Vietnam, he would face this risk of being killed.
The applicant confirmed that the confrontation and threats from the debt collectors happened across multiple days. He estimated that this would have occurred four or five times, with the last confrontation taking place sometime in mid-November 2022. He recalled that they stopped him near a market.
I noted that the last confrontation occurred around seven months before he came to Australia. I asked the applicant again if he had been confronted by the debt collectors after November 2022. He did not respond to the question directly but stated that they threatened him by saying that if he did not repay the principal amount, he would die. I asked the applicant whether the debt collectors had threatened him by any other means, for example, by text message. The applicant then responded by saying that they only came to see him in person to ask that he pay back both the principal and interest amounts. I asked the applicant to reconfirm if the last time he was confronted by the debt collectors was in mid-November 2022, and he answered in the affirmative.
Noting that the applicant came to Australia in June 2023, I asked whether the applicant has heard from friends, family or neighbours about loan sharks or debt collectors going to his home to ask of his whereabouts. The applicant stated that there were two occasions where the debt collectors came to his home. On one occasion, they spoke to his neighbour and asked for the applicant. On the second occasion, they spoke to his mother and asked where the applicant was. Both the neighbour and his mother told the debt collectors that the applicant had gone abroad or to Australia. Asked when these events happened, the application stated that he could not remember, but then said that on the second occasion they enquired of his whereabouts, this was early 2025.
I raised with the applicant his earlier evidence that the loan sharks asked him to sell his home so that they could recoup their loan. I asked the applicant whether their request was a reasonable one and how much his home was valued at. The applicant stated that his home would be worth around VND 500 or 600 million. He agreed that the request to sell assets to cover his debt was reasonable but that would result in his mother not having a place to live. He explained that his mother is elderly and that the property that he was living in belonged to his parents.
Asked why the applicant decided to come to Australia instead of remaining in Vietnam to continue to work and service the loan, the applicant stated that after arriving in Australia, he worked and realised that the income was just enough for his living costs and to send some money back home occasionally as gifts for his family. He stated that Australia has a very “human government” and he expects that the Australian government will protect him and allow him to remain in Australia for his own safety and to stay away from risk.
I explained to the applicant that he had disclosed his Australian salary earlier in the hearing. The Australian salary declared was higher than the applicant’s Vietnamese monthly earnings. I noted that while the applicant was still in Vietnam, he had been able to pay the interest on the loan. Since the applicant had stated that he has kept his Australian earnings to cover living costs and the occasional gifting of money to his family on special occasions, I asked why he could not make repayments to the loan sharks to try to decrease the risk of harm. The applicant stated that the initial principal amount was VND 40 million but this has since increased to VND 100 million. Since arriving in Australia, he stopped paying interest. The debt collectors advised his family that since he has stopped paying interest, they would be charging even more interest on top of that original interest component. The total debt amount has since accumulated to VND 100 million, and he was unable to pay that amount.
I asked the applicant if it was his choice to stop paying the interest even though he was earning an Australian salary. The applicant stated that when he left Vietnam, he thought he would return one day. However, after living in Australia, it helped him realise that everything in Australia is good, from the social security system, to the people to the government. That is why he has applied for protection. He hopes that he can remain in Australia and begs the government to give him the opportunity to renew his life.
I asked the applicant to explain his reasons for borrowing VND 40 million from the loan sharks, and what he used the money for. The applicant stated that the money was for the medical treatment he needed after his accident. He confirmed that the three loan amounts from the loan shark and two neighbours were used for his medical treatment.
I raised with the applicant that he had given earlier evidence stating that he suspected that the loan sharks caused his motorbike accident but given the sequence of events that the applicant had explained during hearing, this did not make sense. The applicant had stated that he had his motorbike accident in March 2022 but that his loan was taken out with the loan sharks in April 2022. The applicant stated that it was only his suspicion that the accident was caused by the loan sharks but that he has no evidence that it was actually caused by them.
I explained to the applicant that I did not understand his suspicion that the loan sharks caused the accident given that he had not yet borrowed money from the loan sharks on the day of the accident which was sometime in March 2022, whereas, he had earlier confirmed that the loan was taken out in April 2022. The applicant, again, stated that he only suspected that they caused the accident. He stated that the accident happened in March 2022 and he borrowed money from them on 24 April 2022 for medical treatment resulting from the accident. While he was suspicious of them, he cannot confirm that they caused the accident. Afterwards, they confronted him to recover the debt while he was on his way home from work. All of these confrontations happened and were true.
As the applicant did not clearly answer my question regarding why he suspected that the loan sharks caused the March 2022 accident when he only borrowed money from them in April 2022 for medical treatment, I asked him to confirm the sequence of events and he reconfirmed them as per the above paragraph.
I raised with the applicant that he had stated that he had some issues with authorities suppressing him. I asked him to explain this statement to me and to provide me with actual examples. The applicant stated that on one occasion, he saw wrongdoing on the part of the authorities and raised his voice, but they ignored him and told him that it was not his business. He said during this incident, he witnessed a woman riding a motorbike when she was stopped and fined by the local authorities. The applicant was of the view that the woman was driving correctly and had not breached any rules or laws. When he confronted the officer to find out what the woman had done wrong, the officer stated that she had violated traffic rules. The applicant then asked the officer to cite the provisions that this woman had breached. The officer’s response was that the applicant was preventing the officer from doing his work. Asked what happened to the applicant after that, the applicant stated that the officer just ignored him. The applicant went on to say that there are no human rights in Vietnam, unlike in Australia. In Australia, there are good people and leaders and you can raise your voice.
The applicant also gave a second example of officers not following the law in an incident where certain motorbike riders were not permitted to drive on a local road given their alleged lack of payment of the toll. The applicant believes that the officer’s superior was not aware of what was happening at the local level of government. When he raised his voice on this issue, the authorities did not respond.
I also raised with the applicant that although he has confirmed that the protection visa claims were written on his behalf and without his input, when I had told him about a specific claim in his written application relating to Vietnamese citizens who return from abroad being watched or treated as “spies”, the applicant had earlier stated that he might have a concern in relation to this. I asked the applicant whether the statement regarding being treated as a spy reflected his actual claims or fears. The applicant stated that while a small part of his claims might relate to this aspect, he is more concerned about the issues he has faced from the debt collector gangs.
Fear of harm upon return to Vietnam
If returned to Vietnam, the applicant stated that he would have to pay back money to the loan sharks. He is sure that they would abduct him or take him someplace else. He does not know what would happen to him. He would be walking blind into the future. The applicant stated that the debt collectors could sell him to a crime organisation in Cambodia. They would have many ways to force him to repay the debt, which is beyond his capacity. The accumulated debt is much higher than his capacity. The debt accumulated over the last two years has come to VND 100 million.
The applicant does not think that authorities in Vietnam could protect him. The top leaders at the central level are too far away to understand what happens locally. The local authorities are useless and corrupted. The applicant believes that they fight for loan sharks, otherwise loan sharks would not be that reckless and rampant.
The applicant stated that it would be difficult for him to relocate to another part of Vietnam to avoid harm. To his understanding, loan sharks have a wide network where they could track him down. He does not know why or how, but they can access such information about debtees quickly.
Issues put to the applicant for comment
I discussed with the applicant that he had said multiple times that he prefers living in Australia due to factors such as the government, environment and social security system, and that these factors are better those in Vietnam. While I understood the applicant’s preference, I explained that factors such as the style of government and socio-economic conditions are factors that apply to the broader Vietnamese population and are not factors that have been imposed on the applicant personally. These factors or less favourable conditions do not appear to have been imposed on the applicant due to any of the five refugee reasons discussed at the beginning of the hearing – being race, religion, nationality, membership of a particular social group or political opinion. This might lead me to find that the applicant’s preference to live in Australia due to experiencing lower standards in Vietnam are not reasons that fit under the refugee criterion or do not meet the complementary protection criterion.
When invited to comment, the applicant stated that he has a fear that he might be killed by loan sharks, or be sold off or have his organs taken. He fears these possibilities.
I explained to the applicant that the evidence he provided at hearing regarding his debt was not included in his protection visa application, except for some brief references to debt collectors. During hearing the applicant had given a lot more detail and evidence which I would need to consider before making a decision. However, I put to the applicant that, under s 367A of the Act, if an applicant raises a claim or evidence that was not originally provided to the delegate before they made a decision on a protection visa application, The Tribunal is to draw an adverse inference unfavourable to the credibility of the claim unless an applicant can provide a reasonable explanation as to why the evidence or claims were not raised in the protection visa application before a decision was made.
When invited to comment, the applicant stated that it was because he had asked a third party to prepare his application. When the application was made, the third party did not ask the applicant his reasons for coming to Australia. When he had asked the third party to help him, he did not know anything about the protection visa process. He only told them what he wanted, and that person prepared the application independently. They did not ask the applicant for any details nor for any input.
I put to the applicant that his loan was taken out from loan sharks in April 2022 and that they confronted, threatened and “slightly assaulted” him around four to five times. The last time that they confronted him was around mid-November 2022, and they have only asked of his whereabouts twice since he left for Australia. I explained that this might indicate that while they wish to recoup the money owed to them, their verbal threats would not amount to serious or significant harm or carrying out their threat of killing the applicant. I might find that the harm he fears does not meet the real chance of serious harm or real risk of significant harm thresholds that were discussed with him at the beginning of the hearing.
When invited to comment, the applicant stated that if he returns to Vietnam now, he does not have money and there would be a real risk that he would be harmed by loan sharks given that he owes them a huge amount of money. He stated that as explained earlier, they confronted him on the way home from work, forced him to their place and physically assaulted him.
I raised with the applicant again that I had difficulty understanding why he had not made any repayments or contributed towards his debt since arriving in Australia despite his Australian earnings. I stated that it might seem that this aspect is within his control and that he could reduce the risk of harm by making repayments. I acknowledged that the applicant felt that the claimed total debt is quite significant but asked him again whether repayment might alleviate the seriousness of harm.
When invited to comment, the applicant stated that it was not a matter of not wanting to pay the loan back. He said that even if he paid back some of the money, it would not be a significant payment compared to the total amount owed. On the other hand, living costs in Australia are quite expensive. With his income, he ha just enough to cover his own living costs. I asked the applicant whether he had saved up any money or has any savings. His response was that he has been saving a little for himself, but not much. He has to spend a lot on living costs.
I put to the applicant the following country information:
a.Authorities in Vietnam have recognised the seriousness of illegal moneylending and demonstrated a willingness to tackle the activities of illegal moneylenders and loan sharks;
b.Authorities have used law enforcement to break up loan shark rings and offenders have been prosecuted;
c.However, authorities have had difficulty prosecuting loan sharks for charging illegal rates of interest as these are rarely documented on loan papers.
I explained to the applicant that due to the authorities’ willingness to tackle illegal moneylending, and combined with the fact that the applicant has claimed to have documentary evidence of his loan from the loan shark, I might take this to mean that he will have access to state protection and that the harm he fears does not meet the real chance or serious harm or real risk of significant harm thresholds.
When invited to comment, the applicant stated that he is aware that the Vietnamese government has been taking action to prevent the problem. However, he has observed that black credit is still in Vietnam. The more government is acting, the more black credit is out there in Vietnam. He believes that what his government has done is “just the tip of the iceberg”. While he does not know what would happen to him, he knows that loan sharks have various ways to harass people’s lives. They could make people lose their jobs if they wanted. They act in the darkness. The applicant stated that he believes that there is someone or some power behind them.
In relation to the written claim that authorities in Vietnam are looking for ‘spies’ who return from Vietnam after a period of time abroad, while the applicant had said that he might have some concern about this although his claims mainly relate to his debt and issues with debt collectors, I explained that I would still need to address this claim. I raised concerns that the applicant had already said that his claims were written by a third party without them consulting him but that he did not proactively raise this claim during the hearing. I also put to the applicant the following country information:
a.The treatment of returnees to Vietnam varies, with most facing no special scrutiny although those involved in political activism may be subject to surveillance, and questioning;
b.According to the Department of Foreign Affairs and Trade, most returnees, including failed asylum seekers, face no special treatment or questioning unless they have outstanding criminal matters, as seeking asylum is not a crime;
c.Returnees who failed to secure asylum in Australia, including returnees who departed Vietnam for Australia through irregular means, generally face a low risk of harm, a low risk of official discrimination and a low risk of societal discrimination on return.
I explained to the applicant that based on his circumstances and the above country information, I might find that he does not face a real chance or real risk of serious or significant harm if he were to return to Vietnam after a period of time abroad.
When invited to comment, the applicant stated that he had no comments on political aspects. He does not have problems with that. He stated that his only problem is in relation to loan sharks. He emphasised that loan sharks or gangs in Vietnam are quite different to those in Australia. In Vietnam, they have a wide network and work as an underground power. He believes that they have someone or some form of power which backs them up. As they have a wide network, they can monitor debtees anywhere, anytime. If he were to return home today, he knows that they would come to his home the next day. The amount that the applicant owes is significant and he fears that they would do anything to recover the debt.
Prior to the conclusion of the hearing, I advised the applicant that I would provide him with seven days to provide the Tribunal with documentary evidence of his loan with the loan sharks, and any other information or evidence relevant to his claims.
Post-hearing information or evidence
On 5 September 2025, the Tribunal wrote to the applicant by email requesting that he provides documentary evidence of his loan, evidence of his motorbike injuries and related medical treatment, and any other information or evidence relevant to his claims. Where available, the Tribunal also asked the applicant to provide any evidence of his motorbike accident and related medical treatment. The Tribunal asked for the information and evidence to be provided by 11 September 2025.

On 9 September 2025, the applicant provided the following documents:
a.Two photographs of the applicant’s head injuries;
b.Handwritten ‘Money Loan Commitment Letter’ in the Vietnamese language;
c.Certified English translation of the above letter, summarised as follows:
i.Author of the letter is [Mr A] of [Neighbourhood, Commune];
ii.VND 40 million is lent to the applicant with the interest rate of VND 5,000 for each VND 1 million of the loan amount per day;
iii.The applicant borrowed this money to treat “diseases due to a traffic accident”;
iv.The applicant has until 24 July 2022 to pay the interest and principal in full;
v.If he does not pay in time, the interest and principal will be multiplied;
vi.The letter serves as evidence;
vii.Two copies of the letter have been made, with each party keeping one copy;
viii.Do not erase or edit the letter. If either party changes the contents, the letter will no longer be valid;
ix.The letter contained the applicant’s full name, the lender’s full name and signature.
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 information and claims relating to his debt and issues with loan sharks and debt collectors, I have taken into consideration and accept that the applicant’s limited English language ability and lack of understanding of the protection visa process which led him to being reliant on a third party who prepared and lodged the applicant’s protection visa application without the applicant’s input. During hearing, the applicant abandoned all claims relating to political opinion and religion. I have not drawn an inference unfavourable to the credibility of the applicant’s new evidence and claims under s 367A of the Act given the reasonable explanation provided. However, I have concerns about the credibility of some aspects of his claims for other reasons, as discussed below.
There were a number of inconsistencies or issues with some of the applicant’s oral evidence as set out below.
Firstly, the applicant stated that before he had his accident in March 2022, debt collectors came to his place and threatened him. However, he later stated that he only secured a loan with the loan sharks on 24 April 2022. I have difficulty in understanding why loan sharks would threaten him prior to his March 2022 accident if he only secured the loan after the accident in April 2022. The sequence of events that the applicant provided is illogical. As such, I find that the applicant was not subjected to harm or threats by loan sharks prior to his March 2022 accident, and that this information was presented by the applicant to exaggerate his claims. I do not accept that the applicant was threatened by loan sharks prior to March 2022.
Secondly, while the applicant acknowledged that he had no evidence that his accident in March 2022 was caused by debt collectors, he suspects that they caused the accident as a warning to him to pay off his debt. Again, as discussed above, the applicant then stated that he secured the loan with the loan sharks on 24 April 2022 for the purposes of his medical treatment following the accident, meaning that the claimed sequence of events does not make sense. I have difficulty in understanding why the applicant has suspicions that his March 2022 accident was caused by loan sharks as a warning to repay his debt to them, if he had not incurred a debt with them until April 2022. Despite putting the issues regarding the claimed sequence of events to the applicant multiple times, he was unable to provide a clear response or reason. The sequence of events that the applicant provided is illogical. As such, I do not accept that the applicant’s accident was caused by loan sharks or debt collectors as a warning to him.
The applicant firstly stated that he had documentary evidence of his loan with the loan sharks which was back in Vietnam. He then stated that the loan sharks kept the only copy of the paperwork and would not let him retain a copy. He then reverted back to his earlier statement of confirming that he was given paperwork for the loan. I found his reason for the contradiction to be unconvincing. He stated that he had perhaps not explained himself clearly. However, upon review of his evidence, his statement regarding not being able to retain a copy of the loan documents from the loan sharks was very clear. Despite the inconsistent evidence and lack of reasonable explanation, I have given weight to the handwritten loan agreement which provides details of the loan date, loan due date, loan amount and interest amount, all of which align with the applicant’s oral evidence. On this basis, I am willing to accept that the applicant owed a debt to a loan shark.

100. Thirdly, the applicant stated at hearing that while living in Australia, he has been able to work and pay taxes so that he has money to pay back his debt to the loan sharks and their debt collectors to avoid being threatened or killed by them. However, he later repeated that his earnings in Australia are only enough to cover his living expenses and that he occasionally sends monetary gifts to his family on special occasions. The applicant’s latter evidence was provided only when I questioned him on why he would stop repaying or contributing towards his debt to the loan sharks to reduce the risk of harm given that he has been working and earning a salary in Australia. This inconsistent evidence causes me to have concerns about the credibility of the applicant’s claims in relation to the level of debt he has remaining and his inability to service or contribute to the debt, which in turn impacts my assessment of the level of harm the applicant might face if returned to Vietnam. I prefer and accept the applicant’s earlier evidence that he has been working in Australia to pay back his debt to loan sharks to avoid being threatened or killed by him, as this response was given spontaneously at the beginning of the hearing. The applicant’s contradictory evidence that he had not repaid the loan sharks since arriving in Australia and that he has insufficient savings to service the debt was given in the later stages of the hearing when specifically questioned on repayments and whether these could reduce the risk of threat or harm. I have made an adverse finding in relation to the credibility of the applicant’s claims of his inability to service or contribute to the debt.
101. While the two photographs of the applicant’s head injuries were not supported by any evidence of hospital treatment, I am willing to accept that the injuries resulted from his motorbike accident in March 2022.
102. Considering the above, I accept the following claims to be credible:
a.The applicant is separated and has three adult children and an elderly mother living in his home province;
b.The applicant was in a motorbike accident in 2022;
c.The applicant sustained head injuries as a result of the motorbike accident;
d.The applicant borrowed VND 5 million each from two neighbours to fund part of his medical treatment;
e.The applicant has paid each neighbour back VND 2 million each, with an outstanding debt of VND 3 million to each neighbour;
f.The applicant has not been harassed or harmed by his neighbours for the outstanding debt as they wanted to help him after his accident;
g.The neighbours have advised the applicant that the applicant can repay them when he has the money;
h.The applicant entered a loan agreement with a loan shark on 24 April 2022 for the amount of VND 40 million, with a daily interest rate;
i.The loan shark loan was due on 24 July 2022;
j.Whilst in Vietnam, the applicant was only able to pay the interest on the loan, but not the principal amount;
k.The applicant was confronted by the loan sharks and debt collectors approximately four to five times whilst in Vietnam, with the last confrontation occurring in around November 2022;
l.The loan sharks would always confront the applicant in person and ask that he pay back both the principal and interest amounts or sell his home to service the debt. They also followed him home after work and asked him to go to their place, where they “assaulted him slightly” and also threatened to take his motorbike but decided against it due to its low value and the applicant’s reliance on the motorbike for his work;
m.Since arriving in Australia, the applicant has been told by his neighbour and mother that the loan sharks or debt collectors asked of his whereabouts and advised that he had stopped making interest repayments, with the last enquiry made by the loan shark taking place in early 2025;
n.The applicant has an unknown amount of debt owing to loan sharks. I cannot make a finding on the exact amount owing due to a lack of evidence from the applicant, but also note my unacceptance of his evidence that he cannot contribute to his debt using any funds or savings from the money earned whilst in Australia;
o.The applicant has spoken out against authorities on two occasions where he felt that they authorities were misapplying traffic laws. As a result, the applicant was told not to interfere with their work or was ignored.

103. Given that the applicant has confirmed that a third party wrote his claims in his protection visa form and that the applicant has agreed to abandon all claims relating to political opinion and religion, I do not accept any of the applicant’s written claims on these topics, nor that he was harmed due to his political opinion or religion.
104. I do not find the following claims to be credible:
a.The applicant opposed the Vietnamese government;
b.His family opposed government policies and demanded change;
c.His family spoke out against the Vietnamese government and were warned not to do so otherwise they would be jailed;
d.The applicant’s family business was impacted by local authorities;
e.His family became scared, resulting in mental health issues;
f.He has no hope in a communist country and has sought to travel abroad to learn survival skills and to a place where he can exercise freedom of speech;
g.The applicant has concerns that he will be watched by the Vietnamese government and treated like a spy due to his time spent abroad;
h.The applicant’s motorbike accident in March 2022 was caused by loan sharks or debt collectors;
i.The applicant was threatened by loan sharks prior to his motorbike accident;
j.The applicant does not have funds or savings in Australia to make contributions towards his debt to loan sharks.

Refugee criterion assessment
105. 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]
[2] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Claims regarding fear of loan sharks and debt collectors
106. 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 taken 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.
107. 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.
108. 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.
109. I have taken into consideration the above country information on illegal moneylending. I accept that due to the applicant’s claim that he still has an outstanding debt to loan sharks, he may be subjected to forms of physical harassment or ill-treatment from the loan sharks and their debt collectors if he is unable to repay his debt upon return to Vietnam. However, considering that the applicant is still of working age, has gained skills in both Vietnam and Australia, and considering his earnings from his Australian employment (even if only part of the earnings were contributed to the debt), I am of the view that the applicant would be able to find work in Vietnam to continue servicing his debts and provide some amount of contribution to the debt from his Australian earnings. Further, the applicant was able to remain in Vietnam for a further seven months without any confrontation from loan sharks or debt collectors after November 2022, despite claiming that he was only able to make interest repayments, but not principal repayments, and he did not claim that his mother who was questioned by loan sharks or debt collectors of the applicant’s whereabouts was harmed or harassed in any way. I also note the applicant’s oral evidence that when his neighbour and mother were asked of his whereabouts by the loan shark or debt collector, the latter party stated that the applicant had stopped making interest payments. This statement indicates to me that the loan shark is wanting evidence of some form of payment, not necessarily immediate full repayment. I am therefore of the view that these factors lower 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.
110. 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, the applicant has provided evidence of his loan agreement with the loan shark, which also specifies the loan shark’s full name and address. While I have taken into consideration the applicant’s claimed fear of being harmed, including being sold to crime organisations in Cambodia or killed, I am of the view that 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. I have also taken into account the applicant’s ability to continue living in Vietnam for seven months prior to his departure without being confronted again by the loan shark or debt collectors, and that he claims to have been making interest repayments during this time.
111. On the basis of the above assessment, I find that there is not a real chance that the applicant would suffer serious harm due to his debts.
112. The applicant provided oral evidence that he had not been harmed or harassed by his two neighbours due to his outstanding debt, and that they simply wanted to help him after his motorbike accident. As such, I find that the applicant will not suffer any harm from his neighbours due to his outstanding debt to them upon return to Vietnam.
Claims regarding less favourable experiences with government and socio-economic conditions and support in Vietnam
113. While I acknowledge the applicant’s preference for the style of government, environment, people and social security support in Australia, compared to less favourable factors in Vietnam, I am required to determine whether the 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. Based on the applicant’s evidence and circumstances, particularly that he does not have a political profile nor purport to have suffered harm due to any political opinion, the less favourable factors that the applicant discussed 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 in s 5J(1)(a).
[10] (1997) 190 CLR 225 at [258].
Claims regarding being suppressed by authorities
114. While I acknowledge the two traffic-related incidents that the applicant discussed at hearing which involved him challenging authorities for the way in which they applied traffic rules, I note from the applicant’s own evidence that the outcome of these interactions was that the authorities asked him to stop interfering with their work, subsequently ignored him or did not respond to his complaint.

115. I find that such outcomes following these interactions do not align with the non-exhaustive types of harm set out under s 5J(5) of the Act, nor do they reach a similar threshold of harm. As such, I find that there is not a real chance that the applicant would suffer serious harm upon return to Vietnam based on him challenging authorities over their application or claimed misapplication of certain rules and laws.
Claims regarding being watched by government and treated as a spy upon return to Vietnam after a period abroad
116. Through the applicant’s own confirmation, the claims in his protection visa application were written by a third party without his input.
117. When this particular claim was disclosed to him, the applicant stated that this might form a small part of his claim.
118. As discussed with the applicant at hearing, country information states that the treatment of returnees to Vietnam varies, with most facing no special scrutiny, although those involved in political activism may be subject to surveillance and questioning. According to the Department of Home Affairs and Trade, most returnees, including failed asylum seekers, face no special treatment or questioning unless they have outstanding criminal matters, as seeking asylum is not a crime.[11] Returnees who failed to secure asylum in Australia, including returnees who departed Vietnam for Australia though irregular means, generally face a low risk of harm, a low risk of official discrimination and a low risk of societal discrimination on return.[12]
119. Based on the above country information and the applicant’s circumstances, including his lack of political activism, not having disclosed any outstanding criminal matter and not having travelled to Australia through irregular means, I find that there is not a real chance that the applicant would suffer any harm for having spent time abroad should he return to Vietnam.
Claims regarding fear of authorities due to political opinion and religion
120. As the applicant has confirmed that the claims in his protection visa were written by a third party and without his input and because he has confirmed that he wishes to abandon these claims, I find that there is not a real chance that the applicant would suffer any harm for political or religious reasons should he return to Vietnam.
121. 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.
122. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[11] DFAT Country Information Report – Vietnam, 19 February 2025, paragraph 5.50.
[12] DFAT Country Information Report – Vietnam, 19 February 2025, paragraph 5.57.
Complementary protection criterion assessment
123. 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).
124. Under the complementary protection criterion, I need to consider whether the applicant has a real risk of suffering significant harm upon return to Vietnam.
125. ‘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.
Claims regarding fear of loan sharks and debt collectors
126. 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.
127. In relation to whether the potential harm could amount to cruel or inhuman treatment or punishment or degrading treatment or punishment, I have considered that the applicant was repaying interest amounts on his debt and was able to remain in Vietnam for a further seven months without any further confrontation, threats or harm from the loan sharks or debt collectors after they last confronted him in November 2022, and that the harm he faced included verbal threats, demands to pay the interest and principal amounts, demands to sell his home (which belongs to his mother), threats to take his motorbike and being “slightly assaulted”. While the applicant has expressed that he is worried about his inability to repay the full debt, I do not believe that demanding repayment or seizure of assets (noting that the home belongs to the applicant’s mother, and not to the applicant) would inflict a level of severe pain or suffering or cause extreme humiliation as such an act is expected from lenders, illegal or legal.
128. However, I accept that there may be risk of reprisal by the loan sharks and their debt collectors by way of physical or mental violence and public humiliation (as per the above country information) should the applicant be unable to 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. According to the country information discussed with the applicant at hearing, 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 provided documentary evidence of the loan which includes the loan shark’s full name and address. Based on the Vietnamese police’s willingness to tackle illegal money lending operations by way of prosecution and the applicant’s evidence of his loan which would help police prosecute the loan shark, 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 regarding less favourable experiences with government and socio-economic conditions and support in Vietnam
129. While I recognise the applicant’s preference to live in Australia due to the style of government, environment, people and social security support which the applicant thinks would enable him to live a better lifestyle, the alleged less favourable factors in Vietnam do not constitute significant harm as these conditions apply more broadly to the Vietnamese population and are not faced personally by the applicant in any way that would be deemed ‘degrading treatment’ or fall within any of the other types of harm for the purposes of s 36(2A) of the Act.
Claims regarding being suppressed by authorities
130. The applicant’s decision to speak up against authorities due to their claimed misapplication of traffic laws resulted in the applicant being asked not to interfere with the police carrying out their work or being ignored. The applicant has not claimed to have suffered any harm as a result of these events.
131. I find that such outcomes following these interactions do not fall within any of the types of harm set out under s 36(2A) of the Act and do not constitute significant harm.
Claims regarding being watched by government and treated as a spy upon return to Vietnam after a period abroad and claims regarding fear of authorities due to political opinion and religion
132. 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’.[13] I have not accepted, for reasons set out above, that the applicant will suffer any harm from the Vietnamese government, including being treated as a spy, due to his time abroad, nor that he will be harmed by the Vietnamese government due to any political opinion or religious belief. Therefore, I am not satisfied that there is a real risk of the applicant being subjected to any of the kinds of harm set out in the Act.
133. I do not consider the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa).
[13] Chan Yee Kin v MIEA (1989) 169 CLR 379.

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

135. 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.
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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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