1512717 (Refugee)

1512717 (Refugee) [2017] AATA 212 (3 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512717
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Amanda Paxton
DATE:3 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 03 February 2017 at 3:01pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Particular social group – Women – Extortion victim – Protection money – Kidnapping – Credibility issues – Effective protection – Delay in protection application

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1)(b), 499
Migration Regulations 1994, Schedule 2

CASES
Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] September 2015.
The applicant appeared before the tribunal on 24 November 2016 to give evidence and present arguments. The tribunal hearing was conducted predominantly in English, with occasional assistance of an interpreter in the Vietnamese and English languages when required.
A copy of the delegate’s decision dated [in] September 2015 refusing the applicant’s current application for protection was provided to the tribunal on 16 September 2015 together with the applicant’s application for review (the Delegate’s Letter). In addition to setting out the reasons for refusing the applicant’s application for protection the Delegate’s Letter contains a comprehensive outline of her evidence to the delegate at interview. The tribunal listened to the interview with the applicant conducted by the delegate in connection with her protection visa application [in] July 2015.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant's written claims are on Department of Immigration and Border Protection (department) file.[1] [number] from folios 6-9. Her written claims can be summarised as follows:
·The applicant left Vietnam to study in Australia and to take time out from the stress and danger she faced on a daily basis.
·Her parents are divorced. Her father took care of the [children]. It was hard growing up without a mother. They experienced many horrific incidents where their lives were at great harm.
·When the applicant’s father's business was going well, the local gangsters demanded huge protection money. They tried to make the family in debt to them, and made trouble for her father when he refused. They also tried to kidnap them to seek ransom from her father who was beaten. They set up a motorbike accident when her father was driving her [sibling] home after school. They had to pay the gangsters money in return for the safety of her family. The money was shared between the local gangsters and the local police.
·She is fearful for her life and the life of her family. After her father sent her and her [siblings] to Australia to study, he reported the gangster and the police to the internal affairs. This made the situation worse. Her father's business was burnt down and he had to sell all his properties to keep them studying safely in Australia. The house where they lived was taken away by the gangster and they have not been able to return to their house. Her father is left with no house and if she returns to Vietnam, she would be kidnapped and sold to the brothel.
·When she went back to Vietnam in the school holidays, she decided to help her father and protect each other. Her father did not have any money to pay for her school fees but he tried to send her and her [siblings] back to Australia. Her father sold everything and borrowed the money.
·They have been to the authorities many times and it only made their situation worse. The local authority acts as the gangsters' informer. They want to eliminate them to silence everyone.
[1] DIBP, [File number], ff.6-9
The applicant attended an interview with the departmental delegate [in] July 2015, and the delegate provided the following summary of additions and amendments to the applicant’s claims in her decision record which was provided to the tribunal by the delegate:
·The applicant’s parents are divorced. Her mother ordinarily resides in [Country 1] and her father ordinarily resides in Vietnam. Her father is currently in Australia on a [temporary] visa sponsored by her [relative] because her [sibling] has just had a child. He intends to stay in Australia for [number] days.
·Her father was [occupation] of a [company]. He also invested in [two other businesses], but was not involved in the daily operations of these businesses.
·The [company] became bankrupt in around 2008. Her father lost everything and was deep in debt. She did not find out until much later. Her father was always telling her that everything was fine.
·Her father borrowed a lot of money. When she visited Vietnam in 2006, there were people throwing snakes at her house. There were also people that came with weapons trying to break into her house. They were trying to scare her father into paying back the debts. She called the police but the police did not care. Her father told her not to worry and it was not a big problem.
·She was also kidnapped during her trip to Vietnam in 2006. When she got out of her house one day, she was grabbed by a group of people. She was taken to a place and locked up in a room without food or water. One or two days later, she was released. She does not know how her father got the money to pay the ransom. She also does not know how much ransom her father paid. After she was released, the people stopped coming to her house. They lived in peace for a while. Her father told her that he has resolved all his problems and there was nothing to be worried about.
·She was in a relationship with someone for four years. He was a [temporary] visa holder but was subsequently granted permanent residence of Australia. They lived together and planned to get married however when he found out about her family's problem, he dumped her. She lost everything and broke down. This happened around the time she became unlawful and was the reason she did not regularise her status earlier.
·She is unable to return to Vietnam because everyone knows that she lived with a man for a long time but was not married. If she returns to Vietnam she will live in shame and no one will be willing to marry her.
·She is also unable to return to Vietnam because her father has lost everything and is deep in debt. If she returns to Vietnam, her finger could be cut or she could be killed. She is in danger and the authorities will not protect her because Vietnam is a communist country.
The applicant made the following claims at a hearing with the tribunal on 24 November 2017:
·     The applicant was born in Ho Chi Minh City in [year] and is now [age] years old. She is single and lives with [a] [sibling], who is married and has [children].
·     The applicant’s parents separated when the applicant was young, and the applicant and her [siblings] went to live with her father who was financially in a stronger situation. Her household registration remained at the address of her mother to avoid bureaucratic difficulties. The applicant’s mother is usually resident in [Country 1], but she is now in Australia visiting her new newborn [grandchild], the applicant’s [sibling’s] child. Her mother has another family and they do not see each other much.
·     The applicant’s father lives in Vietnam. He moves around a lot to stay safe from gangsters and she does not know where he is. He no longer lives in HCMC, but lives in [other locations]. She last spoke to her father about two months ago. She cannot call him because he has to stay away from dangerous gangsters. The applicant’s father came to Australia to visit his new [grandchild] one year ago.
·     The applicant was originally a part of her [sibling’s] application but then made an application independent of her [sibling].
·     The applicant has been living with her [sibling] for the past two years. While a lot of people at her age are married and have children, the applicant does not have this. She has taken care of her [sibling’s] young children and desperately wants to stay with them. The applicant’s [sibling] supported her when she was in a very bad condition and did not know what to do or how to carry on in life. The applicant wishes to support her [sibling] and continue caring for her [sibling’s] children, as she is now doing, in return.
·     The applicant completed [grade] in Vietnam and in [year], she came to Australia to study to improve her future. She completed a [qualification] in [year] and her transcript shows she did very well. She then commenced a [further course], but she did not complete this course because she was very stressed and had psychological problems. Her enrolment was cancelled and she enrolled at [a different provider] but she did not finish this study.
·     The applicant’s father held a senior position as [occupation], Factory, at a well-known and successful [company], [named]. He was an employee and paid a good wage which enabled him to send the applicant and her [siblings] abroad for study.
·     Some gangsters related to government demanded protection money from the applicant’s father. He father also borrowed money on the black market to gangsters who were associated with the police, to maintain his [children] as students in Australia. As his company became weaker, the gangsters became concerned about the debt and started putting pressure on her father to make repayments.
·     The applicant returned to Vietnam in 2006 for a holiday and stayed about [number] weeks. In that time she realised that her father had problems because people would throw things at the house, rocks and sometimes [food matter] (which stinks) and sometimes even snakes. They would bang on the door, leaving when her father did not answer the door. The applicant tried to speak with her father when she realised there were problems but he did not want to worry her and has told her very little about his affairs.
·     Two weeks into her stay in Vietnam in 2006, some people broke into the house and kidnapped her, taking her to a house and keeping her there for three nights, releasing her after her father paid some of his debt. After her release, her father told her that it was a bad situation and that she should return to Australia for her safety. However, she remained for a further month because she wanted to look after him. The applicant’s father did not report the kidnapping incident because the gangsters told him something bad would happen if he did. After the applicant departed Vietnam, her father reported the kidnapping to the police but they ignored him.
·     In 2008, the [company] went bankrupt. Her father could not find other employment because he was too old, and people created trouble in his life. The gangsters stepped up their action when they knew her father’s ability to make repayments had reduced. His debt was very high and, as he no longer had a job, all his property - his house - has been taken over by the gangster. He has not yet discharged his debt. Her father is living with what he was able to keep and hide. Life is cheap where he is living.
·     The applicant fears that on her return to Vietnam the gangsters will find her and do something else because the gangsters said they would take action against her father’s family.
·     The government will not protect her from harm. The applicant gave the example of government colluding with criminals to sell the organs of kidnapped children, as evidence that the government do not protect people.
·     If the applicant returns to Vietnam she will have to find work. In any employment a person has to break the law by using bribery and she does not want to do have to do anything against the law. She does not have the ability to work within the corrupt environment.
·     The applicant fears the security situation in Vietnam arising from China’s action in the South Sea. War is imminent between Vietnam and China.
·     The applicant fears return to Vietnam because there are no human rights. As evidence, the applicant stated that if people protest against China’s action in the South Sea, they will be jailed by the Vietnamese authorities without seeing family or a lawyer.
·     In Vietnam, there are no rights for women.
·     As a person over 26 years of age, the applicant will not be able to marry and have a family because Vietnam is very conservative. If the applicant returns to Vietnam there is a low chance she can have a family.

Following the tribunal hearing, the applicant provided a further submission on 29 November 2016.[2] This submission can be summarised as follows:
·     The applicant did not express her situation clearly at the hearing due to her psychological condition.
·     The applicant notes that she was included as a member of the family unit on her [sibling’s] application for protection but that her application is now made independently of her [sibling]. The applicant’s [sibling] has withdrawn [the] application. The applicant requests that her circumstances are not confused with those of her [sibling].
·     The applicant did not have much notice for her interview with the departmental delegate, and she believes she was not well prepared for this interview.
·     There is bribery and corruption in Vietnam by government officials. The applicant provides an internet article about Ms Nguyet Huong, a Vietnamese government member, who bought Maltese citizenship.
·     Women have no rights in Vietnam. The applicant provides an internet article about Miss Vietnamese Russia who after breaking up with her powerful boyfriend was falsely accused of housing fraud and arrested. As further evidence, the applicant provides an example of a female blogger who was jailed for writing about the situation of Formosa and the South China Sea and was not provided with legal assistance. The applicant also claims that in Vietnam there is discussion that women over the age of 33 years will not be allowed to become pregnant.[3] As the applicant is more [that age], she may never have the chance of having a child.
·     There is a high potential for war between Vietnam and China arising from conflict about the South Seas, Truong Sa and Hoang Sa Islands, and this puts Vietnam in danger. The applicant provides internet articles about this situation.
·     The applicant submits that her four years in Australia without a valid visa occurred because she was in a severe mental condition and depressed because her former partner left her and took no responsibility for her.
·     In Australia, the applicant has shelter, a job, a family and a future. The applicant will make a good citizen. She contributes to the society, and is for example a blood donor. In Australia, the applicant can help her [sibling] take care of [their children]. The applicant also helps her [sibling] financially. Also provided by the applicant is a photo of the applicant with her [sibling’s child], with whom she wants to stay.
[2] AAT, f. 35 - 42
[3] AAT, f.36 refers
Country of nationality
The applicant claims to be a citizen of Vietnam, and has provided to the tribunal a copy of her Vietnamese passport. The tribunal finds that the applicant is a citizen of Vietnam, that Vietnam is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Vietnam is her receiving country for the purposes of complementary protection.
Third country protection
There is no evidence before the tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Findings and reasons
The tribunal notes the applicant’s submission to the tribunal following the hearing that she did not express herself well at the hearing because of her psychological condition. The tribunal also notes the applicant indicated that she was unprepared and nervous for her interview with the departmental delegate. The tribunal has therefore considered the applicant’s competency to present and provide evidence and arguments at the hearing.
The tribunal noted that while the applicant presented as very emotional at the hearing and was frequently tearful and distressed when speaking about the prospect of leaving her [sibling] and [sibling’s children], she was highly articulate, using sophisticated language to explain complex matters, such as those related to the demise of the [company] who employed her father. She was alert and responded appropriately to enquiry. The tribunal considered the applicant was able to provide evidence and to articulate her past experiences. The tribunal found the applicant was competent and able to present and provide evidence at the hearing.
The applicant showed herself to be very proficient in English and much of the hearing was conducted in English. However, the Tribunal ensured the applicant understood the questions at all times and that the interpreter was used if there was any uncertainty. The hearing was lengthy and the tribunal facilitated breaks to enable the applicant to compose herself when necessary.
As the applicant was advised at the hearing, the tribunal also listened to the applicant’s interview with the delegate, and formed the view that the applicant appeared at that time to be competent to present and provide evidence, and considered that the applicant was provided with a fair opportunity to do so.
The tribunal acknowledges the applicant’s request that her circumstances be considered separately from those of her [sibling], noting that the applicant was originally included as a dependent of her [sibling’s] application. In this decision, the tribunal is considering whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Vietnam on the basis of the circumstances of the applicant.
On the consistent evidence of the applicant throughout the protection application process, the tribunal accepts the applicant is [an age] year old woman from Ho Chi Minh City, Vietnam and that she came to Australia in 2002 to study. On the consistent evidence of the applicant, the tribunal accepts she has [number of siblings] in Australia and lives with [one sibling and family]. On the basis of the applicant’s evidence, including documentary evidence provided by the applicant to the tribunal, the tribunal accepts that she completed a [qualification] in [year] and enrolled in a [further course] and when that enrolment was cancelled she enrolled in a course with [a different provider].
On the evidence before it, the tribunal accepts that the applicant returned to Vietnam for a holiday in 2006 and that her visa expired in 2010.
On the consistent evidence of the applicant, the tribunal accepts the applicant and her siblings lived with her father in Ho Chi Minh City after her parents separated. On the consistent evidence of the applicant over the course of her protection process the tribunal accepts the applicant’s father held a senior position as [occupation], Factory, at an established [factory], [named], and that he was paid a good wage that enabled him to send the applicant and her [siblings] abroad for study.
The tribunal accepts the applicant’s father visited Australia in 2015 and that her mother, who is usually resident and in [Country 1], was visiting Australia at the time of the hearing.
Harm from gangsters
In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Vietnam arising from her father’s involvement with, the tribunal has considered the applicant’s credibility in respect of these claims. The applicant told the tribunal that she obtained assistance from her friend to fill out the form but she provided him with the information and is satisfied that the information on the form is correct.
The tribunal listened to the applicant’s evidence to the delegate at interview and considered that her oral evidence to the tribunal hearing contained significant inconsistencies with her earlier claims. The inconsistencies in the applicant’s evidence led the tribunal to hold serious doubts about the general credibility of the applicant in respect to claims concerning gangsters. In her interview with the delegate and in her oral evidence to the tribunal the applicant made the following inconsistent statements in respect of her claimed kidnapping in 2006 by gangsters to put pressure on her father to make a debt repayment:
·     Departmental interview: She was kidnapped a few weeks after she arrived in Vietnam.
·     Tribunal hearing: She was kidnapped two weeks into her stay
·     Departmental interview: She was kidnapped “when she got out of her house one day she was grabbed by a lot of guys.
·     Tribunal hearing: Some people broke into the house and took her with them.
·     Departmental interview: She was taken to a place and locked up in a room without food or water.
·     Tribunal hearing: They gave her food and drink and then they took her back.
·     Departmental interview: She was tied up in a dark room and she could not scream because she had a bandage across her mouth.
·     Tribunal hearing: She was locked in a room. They did not harm her.
·     Departmental interview: After one or two days later, she was released.
·     Tribunal hearing: She was held for three nights.
The tribunal considers these inconsistencies to be significant because the tribunal would expect that the applicant could accurately and consistently recall key events about such an extreme experience as being kidnapped, had occurred as claimed. In light of these inconsistencies the tribunal has significant concerns about the credibility of the applicant’s claims to have been kidnapped and considers that these cast doubt on the applicant’s general credibility.
The tribunal assessed the applicant’s evidence about her own involvement with gangsters and considered it to be vague and hesitant. In relation to the kidnapping, the applicant could not tell the tribunal how the gangsters found her in the house; she could not describe who the people who took her were, or anything about where she was taken; or approximately how long it took to get there. In response to the tribunal’s enquiries, the applicant stated that she was too scared to remember these things. The tribunal considers this explanation unconvincing in view of the impact these events could be expected to have on the applicant if they were true. The applicant’s vague and limited responses to questions where it would expect her to recall events with the clarity and spontaneity reflecting personal experience, led the tribunal to doubt the veracity of the applicant’s claims and to conclude that there was not a credible basis for the claims.
In assessing the applicant’s credibility, the tribunal considered the applicant’s account of her father’s circumstances. The tribunal considered the applicant response to questions about any matters pertaining to her father’s dealings with gangsters to be vague and limited. The tribunal notes that the applicant showed herself to be very knowledgeable at an advanced level about a range of complex matters. The applicant’s explanation at the hearing of the impact of international companies on local companies as Vietnam opened up its economy and company dealings on the stock market was very sophisticated. The tribunal formed the view that it was not plausible that a person of the applicant’s demonstrated intelligence and business knowledge had obtained so little knowledge of her father’s situation. She stated that she did not know anything about her father’s debts but calculated that it was a large sum; she did not know who he owed the money to, how much he paid as ransom to kidnappers, or what her father’s current situation is, or anything about his other businesses which were raised in her interview with the department. The applicant claimed, her father gave documents for his houses to the gangster but she does not know how far this transaction went to discharge her father’s debt. The applicant had not information about her father’s current contact with the gangsters or how they might find her if she returns to Ho Chi Minh City. The applicant stated that she has does not have information from her father because he did not want to worry her and that he always said everything was good. The tribunal accepts that the applicant may not have a highly detailed understanding of her father’s situation, however, given the significance of these matters to the applicant’s protection claims along with her high level of knowledge generally, the tribunal would expect that she would make enquiry from her father to clearly understand her situation and be able to present the basis of his dealings with gangsters with greater clarity, if there was any basis in fact to these claims. These considerations cause the tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection.
The tribunal also considered a number of the applicant’s claims to be implausible, leading the tribunal to have serious concerns about the applicant’s general credibility. The applicant claimed that she was kidnapped and held for three nights, which if true would be a very serious and frightening crime. Despite this however, and despite her claim that her father wanted her to depart Vietnam immediately, the applicant stated that she remained with her father for a further four weeks because she cares for him and wanted to ensure his safety. The tribunal finds it difficult to believe that after the events of the kidnapping, the applicant would do this. In another example, the applicant claimed that her father did not report the kidnapping incident to police until the applicant had departed Vietnam because the gangsters told him something bad would happen if he did and that when he made the report the police but they ignored him. The applicant agreed with the tribunal that it would be unlikely that police would pursue a report of a kidnapping where the victim had departed the country and was not present to tell them what happened. The applicant told the tribunal she did not know why her father waited until she returned to Australia. The tribunal considers the implausibility of these claims casts doubt on the applicant as a credible witness.
The tribunal further noted that it is now over ten years since her claimed kidnapping and during this time, the applicant’s father has had the freedom and sufficient funds to travel to Australia for a visit, and that he returned to Vietnam and, on the evidence, he has continued to live in Vietnam, without harm from gangsters. The tribunal concludes that the applicant’s father has been able to continue to live freely in Vietnam in safety from gangsters or anyone else.
In assessing the applicant’s general credibility, the tribunal considered that she did not raise any claims to need protection from harm in Vietnam from gangsters or for any other reason until April 2014, eight years after her claimed kidnap by gangsters and more than three years after her visa had expired in 2010. In response to tribunal enquiries why such a long period elapsed before she made her application for protection, the applicant stated that when her visa was expiring she asked her partner of four years, who was applying for permanent residence, to sponsor her but he did not want to do that. When his parents were visiting him, they guessed that she did not have a visa and she had to leave the house. She moved around to different places and, as she also describes in her post-hearing submission, she was in a very bad psychological situation. The applicant described a time where she did not want to live anymore. Although her [sibling] encouraged her to seek advice, the applicant did not feel strong and did not do this. On the evidence of the applicant, the tribunal accepts that following her breakup with her partner around 2010, the applicant experienced a very difficult time. However, noting the applicant is well educated, has strong proficiency in English and had the support of her [sibling], the tribunal considers it implausible that in the lengthy period between the break up with her partner and the time she made her application for protection, she would not have been able to take steps to obtain information about her visa options, and to have lodged a protection visa application. The tribunal would expect that the applicant would have lodged her application for protection far earlier that the eventual date, had the applicant had a fear of harm on return to Vietnam. These considerations cause the tribunal to have further doubt as to the credibility of the applicant’s claim to be in need of protection.
Taking the above into account, the tribunal is not satisfied as to the applicant’s general credibility. On this basis, the tribunal does not accept the applicant’s claims to face harm on return to Vietnam from gangsters with whom her father was involved, the police or anyone else. For this reason, the tribunal does not accept the written claims in the applicant’s application that gangsters demanded protection money from the applicant’s father; tried to kidnap them and beat her father. For the same reason, the tribunal does not accept the claims in the applicant’s application that gangsters set up a motorbike accident when her father was riding with her [sibling], or that protection money was shared between the gangsters and the police. On the same basis, the tribunal does not accept the applicant’s written claim that after she and her [siblings] came to Australia, her father reported his situation and the police to the internal affairs, and this led to his business being burnt down. The tribunal does not accept that gangsters took away their house; and that if the applicant returned to Vietnam she would be kidnapped and sold to a brothel.
On the basis that the tribunal does not find the applicant to be a generally credible witness, the tribunal does not accept the applicant’s father borrowed money from gangsters who threw objects at the house and came to the house with weapons to break in and scare her father into paying his debts. On the same basis, the tribunal does not accept that the applicant called police but they did not care; that she was kidnapped during her visit in 2006 and released when her father made a payment to the gangsters; that she is unable to return to Vietnam because the gangsters will harm or kill her.
On the basis that the tribunal does not find the applicant to be a generally credible witness, the tribunal does not accept the applicant’s claims at the hearing that her father was forced to pay protection money to gangsters; that gangsters intimidated him, that gangster’s kidnapped the applicant; that her father must move around to avoid harm from the gangsters; or that gangsters will find the applicant and harm the applicant in any way as a member of her father’s family.
The tribunal does not accept the applicant has a real chance of serious harm now or in the foreseeable future arising from her father’s involvement with gangsters or anyone else. The tribunal finds the applicant does not have a well-founded persecution. The tribunal finds there is not a real risk the applicant faces significant harm on this basis.
Effective protection from the authorities
The tribunal has considered the applicant’s claim that the police will not provide her with protection from the gangsters threatening the applicant and her father because they collude with the police and government. However, as above, the tribunal does not accept the applicant’s claims that she or her father, face harm from gangsters. The tribunal therefore has not addressed this claim.
The tribunal has considered the applicant’s claims that the authorities will not protect her because Vietnam is a communist country where government authorities collude with criminals and engage in bribery and corruption. The tribunal has taken into account advice from the United Kingdom Home Office of August 2013 referencing the US State Department Report of 2012, put to the applicant, that the police in Vietnam are generally effective in maintaining public order, while noting that their capabilities, including investigative capabilities, were generally very limited, and training and resources were inadequate.[4] In their report, the Home Office acknowledge that corruption is a serious concern in Vietnam but they indicate that the government is taking strong steps to limit corruption and providing opportunities, especially in respect to the police, for the public to make complaints if they are concerned the police are not taking action.[5]
[4] United Kingdom, Home Office, Country of origin information report, 9 August 2013, p. 23
[5] United Kingdom, Home Office, Country of origin information report, 9 August 2013, p. 23

In response, the applicant states that the Vietnamese government always provide positive statements to foreigners about the situation in Vietnam but this is actually not the case. The applicant also referred to internet news reports of Chinese activities in the South China Sea about which it is claimed journalists in Vietnam are not permitted to report because the government in Vietnam has tries to be on good terms with the Chinese government. As evidence that the Vietnamese government does not protect its people, the applicant also makes claims that the Vietnamese government colludes with criminals to sell the organs of kidnapped children, and she provides a report of corruption by a government member, who bought Maltese citizenship.
The Tribunal has considered the applicant’s response, but gives weight to the independent country information above, noting that it is drawn from a range of reliable sources. On this basis, the tribunal gives weight to the advice that while corruption continues to be a concern in Vietnam, the police authorities are a functioning force and on the evidence before it the tribunal finds that the authorities will provide effective protection to the applicant if this is required for any reason.
On the basis of the independent county information and the applicant’s circumstances as accepted, the tribunal does not accept the applicant has a real chance of serious harm now or in the foreseeable future because she will not have access to effective protection for any reason. The tribunal finds the applicant does not have a well-founded persecution. On the same basis, the tribunal finds the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm for any reason.
Human Rights
The applicant claims she fears return to Vietnam because there are no human rights in Vietnam. The applicant’s claims in this respect were vague. However, the applicant provided an internet report of a journalist who was imprisoned without legal process because she reported in a blog matters relating to China’s engagement in the South China Sea. While the tribunal accepts the applicant’s inference that the Vietnamese government generally does not tolerate political expression against the government or its policies, the tribunal notes the applicant’s evidence at the hearing that she has not been involved in any political protest. She stated that this was because she is living in Australia and she had participated in internet forums on those topics. The applicant was very vague about her online activity and the tribunal formed the view that while her level of awareness of current events indicated that she pays attention to maters in Vietnam, she has not made any public expression of dissident views in the past and that her online activity provided her with no dissident profile of any kind. On the evidence before it, the tribunal finds the applicant has no profile as a political activist and that she will not develop a dissident profile on return to Vietnam.
The tribunal finds the applicant does not have a real chance of serious harm arising from violation of her human rights now or in the foreseeable future for any reason. The tribunal finds the applicant does not have a well-founded fear of persecution. The tribunal finds the applicant does not have a real risk of significant harm on this basis.
Women’s rights
At the hearing, while the tribunal provided substantial opportunity, the applicant did not raise concerns discussed at her interview with the delegate that she would face shame and discrimination because it would be known that she had been in a common law relationship. When the tribunal raised this matter, the applicant raised issues of women’s rights more broadly, and she focussed on her current situation. The tribunal drew from this response that the applicant no longer had concerns about this matter. The tribunal put country information to the applicant from the United Kingdom, Home Office from August 2013, indicating that while Vietnam does not recognise common law marriages, the authorities issue certificates verifying cohabitation.[6] From this information, the tribunal concluded such relationships have a recognised status in Vietnam indicating a significant level of legal and cultural acceptance. On the evidence before it, the tribunal does not accept that the applicant faces harm arising from her past common-law relationship.
[6] United Kingdom, Home Office, Country of origin information report, 9 August 2013, p. 96
The applicant claims she faces harm in Vietnam because women have no rights. As discussed with the applicant at the hearing, advice from DFAT from August 2015 indicates that while there are some differences in the treatment of women in the labour force, women participate in government and all levels of the labour force, and that:
Article 26 of the Constitution guarantees male and female citizens equal rights in all fields, explicitly bans all forms of discrimination against women, and states that ‘men and women shall receive equal pay for equal work’. The National Assembly has also passed a range of domestic legislation including the Law on Gender Equality (2006) and amendments to the Law on Land (2003) and the Marriage and Family Law (2000) that improve the property rights of women in families.[7]
[7] DFAT Country Information Report, Vietnam, August 2015, p. 13
In response to the country information above, the applicant told the tribunal of a friend, who after 30 years of marriage, did not obtain any share of property from her husband after he divorced her for a younger wife, a situation she claimed indicated that women have few rights in Vietnam. In her post-hearing submission, the applicant also raised a case of Miss Vietnamese Russia who after breaking up with her powerful boyfriend was falsely accused of housing fraud and arrested. The tribunal has considered the applicant’s response but does not consider these examples have a bearing on the applicant’s circumstances and, giving weight to the independent country information, finds that the rights of women are generally protected in Vietnam. Given the applicant’s individual circumstances and the independent country information, the tribunal does not accept she faces a real chance of serious harm or a real risk of significant harm because, as a woman, her rights are not protected.
The tribunal has also considered the applicant’s claim that the authorities of Ho Chi Minh City have proposed that women over the age of 33 should not be permitted to have children. The tribunal notes that the report submitted in support of this claim indicates that this proposal is under discussion only and the tribunal considers the claim that the applicant may be affected by family planning laws are purely speculative. The tribunal finds there is less than a remote chance that the applicant faces a real chance of serious harm now or in the foreseeable future. The tribunal does not accept the applicant faces a real risk of significant harm on this basis.
The tribunal finds the applicant does not have a real chance of serious harm arising now or in the foreseeable future because as a woman her human rights are not protected. The tribunal finds the applicant does not have a well-founded persecution. The tribunal finds the applicant does not have a real risk of significant harm on this basis.
Security in Vietnam
The tribunal has considered the applicant’s claim that she faces harm on return to Vietnam because there is a high chance that war will occur between Vietnam and China. The tribunal has considered this claim and taken account of the article provided by the applicant concerning tensions between Vietnam and China arising from conflict over territory in the South China Sea. The tribunal acknowledges that the South China Sea is a source of international dispute. However, the tribunal considers the prospect of war between China and Vietnam to be purely speculative. The tribunal finds there is less than a remote chance that the applicant faces a real chance of serious harm on this basis. The tribunal finds the applicant does not have a well-founded persecution. The tribunal further finds there are not substantial grounds for believing the applicant faces a real risk of significant harm on this basis.
Employment opportunities and corruption in Vietnam
The applicant claims all employees in Vietnam are compelled to break the law because they have to engage in bribery and she is not prepared to do this. Taking into account country information set out above and discussed with the applicant, the tribunal accepts corruption is a serious problem in Vietnam. However as above and put to the applicant, independent country information indicates the Vietnamese government is taking significant steps to counter corruption. Given this country information and the evidence of the applicant that she is well qualified, possesses excellent English proficiency and intellect, the tribunal considers it is far-fetched that she will not be able to obtain employment in Vietnam where she does not have to break the law. The tribunal finds the applicant does have a well-founded fear of persecution on this basis. The tribunal further finds there are not substantial grounds for believing the applicant faces a real risk of significant harm on this basis.
Other claims
The applicant claims she cannot return to Vietnam for reasons relating to her personal circumstances and the applicant’s distress at the prospect of leaving Australia for these reasons was evident at the hearing. The applicant expressed concerns that she will not find a partner in Vietnam because as [an age] years old woman she is considered old in Vietnam, and that as a consequence she would not have children and a family of her own. Most strongly, the applicant expressed distress about the prospect of separation from her [sibling], who she helps to support, and her [sibling’s children] who she loves deeply. The tribunal acknowledges the applicant’s strong ties to her [sibling] and her [sibling’s children] and also acknowledges that she has provided great support to them. The tribunal accepts that separation from her [sibling] and [children] will be distressing. However, the tribunal finds that these matters have no Convention nexus and do not involve systematic and discriminatory conduct. On this basis, the applicant’s fear of persecution is not well-founded. Having regard to the definition of significant harm in s.36(2) of the Act, the tribunal finds that the difficulties the applicant will experience as a result of the separation from family her [sibling and family] does not constitute significant harm as exhaustively defined.
The tribunal has also considered the applicant’s claim that she will not be able to adapt to life in Vietnam because she has been away a long time, since 2002. The tribunal accepts the applicant may experience some initial difficulties adapting to Vietnam after a long period of absence. However, the tribunal notes that her father lives in Vietnam and the applicant indicated at the hearing that although they may not have close contact they have a caring relationship. The tribunal considers the applicant will be able to obtain emotional and practical support from her father on return to Vietnam. The tribunal also considers that the applicant is well educated and has experience in a range of employment. In addition, while the tribunal acknowledges she experienced emotional difficulties when her relationship broke down, she has subsequently demonstrated initiative and independence in obtaining employment and supporting both herself and her [sibling]. The tribunal considers the applicant will be able to re-establish herself on return to Vietnam. The tribunal finds that these matters have no Convention nexus and do not involve systematic and discriminatory conduct. On this basis, the applicant’s fear of persecution is not well-founded. Having regard to the definition of significant harm in s.36(2) of the Act, the tribunal finds that the initial difficulties the applicant may experience on return to Vietnam do not constitute significant harm as exhaustively defined.
The applicant told the tribunal that if able to remain in Australia, she would make a contribution and be a good citizen. The tribunal acknowledges the applicant’s evident skills and work ethic and that she makes a contribution to the community in a number of ways including blood donations. However, the tribunal finds these matters are outside the scope of the tribunal’s consideration.
The tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for any reason. The applicant’s fear of persecution is not well founded.
Having regard to all the circumstances and findings above, both individually and cumulatively, the tribunal finds there are not substantial grounds for believing that there is a real risk of the applicant will suffer significant harm upon being removed from Australia to Vietnam.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Amanda Paxton
Member

[2017] AATA 212

3 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction