1618502 (Refugee)

[2019] AATA 5847

1618502 (Refugee) [2019] AATA 5847 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618502

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Noonan

DATE:17 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 June 2019 at 1:45pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – money lenders with contacts in Vietnam – unable to repay debt – credibility issues – lack of identifying details – no record of loan and repayments – claim not mentioned until the day before hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam applied for the visa on 22 September 2014 and the delegate refused to grant the visa on 25 October 2016.

3. The applicant appeared before the Tribunal on 7 June 2019 to give evidence and present arguments. The applicant was represented by her registered migration agent [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The Tribunal has before it the [Department file], which includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision. A copy of the applicant’s Vietnamese passport is on the Department’s file and expires [in] 2022.

20. In her application for a protection visa the applicant listed her nationality as Vietnamese and her religion as Buddhist. She listed a [qualification] majoring in [Discipline 1] in Vietnam. She has also trained as a [Occupation 1] in Australia. She set out that she worked as an [Occupation 2] in Vietnam between 1999 and 2007. For the past few years she listed that she has worked as a [Occupation 3] in Australia. She stated that she left Vietnam to study in Australia. She stated that she subsequently married an Australia citizen. She has no children.

21. In her application for review the applicant provided a copy of the delegate’s decision record and also made two further written submissions to the Tribunal.

22. In her original written claim for protection made out to the Department, in response to the question as what she fears may happen if she returns to Vietnam she stated that she was informed her (now) ex-husband may not have validly divorced his second wife. Further that her ex-husband refuses to go back to Vietnam and she does not want to go back without him. She stated that because Vietnam is a communist country she will be forced into a life of prostitution. Further she will persecuted because she will be looked upon as an unmarried woman and because of her profession the authorities will not protect her.

23. In the first written submission to the Tribunal the applicant submitted that her sister, who lives in Vietnam, informed her that some people came and threatened her and asked about the applicant. The only information her sister could discover was that it looked like the girlfriend or wife of her ex-husband in Vietnam. They threatened her sister that if the applicant spoke about this woman’s relationship with her ex-husband that would be the end of her sister. As a result of this approach to her sister she fears she will be targeted for harm if she goes back to Vietnam by these people or persons who know her ex-husband and approached her sister because she owes him money, as he paid for her visa fees and other costs, and he wants his money back.

24. The Tribunal also considered a statutory declaration received from the applicant’s sister based in Australia after the hearing, dated 8 June 2019. The Tribunal did not consider there was any information contained within this declaration that may alter the Tribunal’s decision in this matter.

25. On the day of the Tribunal hearing the applicant lodged a further written submission with the Tribunal. She now submitted that she owes money to a money lender located in Australia who also has Vietnamese connections. She has been making monthly payments to this money lender. She had recently communicated to the money lender that she planned to give up everything and become a nun. The money lender had then threatened her sister in Vietnam and now she is afraid for her sister and herself. She must remain in Australia and work so that she can pay the money lender. She may not be able to find a job in Vietnam and so would not be able to pay the money lender which would result in her being harmed by the money lender.

26. The applicant confirmed to the Tribunal that she has no written evidence of the loan she took from the money lenders. They made her sign paperwork but did not let her keep a copy of it. She borrowed $20,000 and must pay the money lender $1,000 a month. She borrowed $10,000 in 2011 and another $10,000 in 2014. She fell behind in her payments in mid-2014 and again in 2015. They threatened her that if she did not pay she would be beaten up and they would leave scars on her face to remind her to pay them. She had to borrow money from friends to pay the money lender. She still owes the money lender $19,000. She has not approached any authorities or councillors in Australia in respect to her situation as she is afraid for her sister in Vietnam. She stated that the money lenders had visited her sister in Vietnam and asked her if she knew that her sister was indebted in Australia. When the Tribunal asked the applicant why she had not mentioned any concerns in respect to money lenders previously she stated that she had thought it was a personal issue, she wasn’t in that much debt and now she is desperate. She thought she would be protected by the authorities if she is in Australia but will not be in Vietnam.

27. The applicant confirmed that she no longer fears harm from her ex-husbands girlfriend or wife in Vietnam as she no longer lives with her ex-husband. She stated her ex-husband, who lives in Australia, has demanded money back from her but he has not directly threatened her sister or herself with harm. She also stated that she does not now fear being forced into prostitution if she returns to Vietnam. She was in crisis when she wrote that down and no longer fears this. She now just wants to become a nun. She also confirmed that she no longer fears returning to Vietnam as a single woman.

28. The applicant also submitted that her work prospects in Vietnam are poor as she is a bit old now and she has not kept up with [Occupation 2] updates. She confirmed she is [age] years old. She must earn money to pay her debts. She confirmed she could live with her sister in their parent’s old house. She stated that she does not mind going back to Vietnam just not until her debt is paid back to the money lenders. The applicant’s representative submitted that there is an indirect implication in respect to a threat from money lenders in the applicant’s first written submission to the Tribunal. She had only first mentioned this concern to him the day before the hearing with the Tribunal.

    Credibility – Claim to fear harm from money lenders with contacts in Vietnam

29. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

30. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2] 

    [2] MIEA v Guo (1997) 191 CLR 559 at 596; and Prasad v MIEA (1985) 6 FCR 155 at 169–70

31. The Tribunal has considerable doubts about the claim made by the applicant that she fears harm in Vietnam due to a debt she owes money lenders in Australia who have contacts in Vietnam. The applicant was unable to provide identifying details of the money lenders other than stating one of them was called [Mr B]. The Tribunal found this unconvincing as she stated she has been dealing with this money lender since at least 2011. She also has no written records of the loans she took out, repayments made or amounts owing. She stated everything is transacted in cash and she has no records of the loans or repayments. The Tribunal also found this unconvincing and would expect the applicant to have a record of payments she has made at the very least. Nevertheless, the Tribunal was prepared to consider the applicant may be subject to extortion by criminals in Australia with contacts in Vietnam, whom she is unable to provide identifying details about. However the Tribunal found that this potential was significantly undermined by the applicant’s evidence that she has been dealing with these criminals since 2011 and was threatened by them in mid-2014 when she fell behind in the payments they demanded from her. She first made her claim for protection on 19 September 2014 but made no mention of this threat or any fear of harm from these criminals. The Tribunal considered the applicant’s claim that she did not mention her fears in respect to money lenders with contacts in Vietnam in her protection claim, as she thought it was a personal issue, to be lacking in reasonable plausibility and lacking in credibility.

32. The applicant also made no mention of the fear of harm from money lenders in her first written submission to the Tribunal in 2019 after receiving notice of the hearing. The Tribunal did not accept that this fear was made out indirectly in this submission. She specifically mentioned that her sister was threatened in respect to her relationship with her ex-husband by his girlfriend or wife due to her relationship with him. She made no mention of owing money or being threatened by money lenders with contacts in Vietnam and the Tribunal does not accept her representative’s assertion that she did so as an indirect implication of making the statement about her sister. The Tribunal would expect a consistent accounting of fearing harm from criminals in the form of money lenders, whom had threatened her sister and herself with harm, and the fact that this has not occurred caused the Tribunal to further doubt the credibility of this new claim that has been introduced at the last moment in this appeal process.

33. After considering the totality of the evidence the Tribunal found the applicant’s evidence in regard to this claim to be not credible.

    Conclusions on credibility – money owed to money lenders with contacts in Vietnam

34. On the basis of the above considerations the Tribunal did not accept that the applicant or her sister in Vietnam have received threats of harm from money lenders or criminals in Australia with contacts in Vietnam. The Tribunal finds that the applicant does not owe money to money lenders in Australia with contacts in Vietnam. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for this reason claimed if she returns to Vietnam.

    Fear of harm – ex-husband and persons associated with her ex-husband

35. The Tribunal noted that the applicant did not clearly abandon her claim to fear harm from her ex-husband in respect to money she owes him. She gave evidence that her sister in Vietnam had received a threat from a person associated with her ex-husband. In her first written claim she submitted that due to this threat she feared harm due to the debt she owes her ex-husband. This threat was received from either her ex-husband’s girlfriend or wife in Vietnam. However, at hearing, she gave clear evidence that she no longer feared harm from this person, or persons associated with her ex-husband in Vietnam, whom had delivered a threat of harm to her sister in Vietnam. The Tribunal concluded, and so found, that the applicant no longer fears harm from persons associated with her ex-husband in Vietnam. The applicant gave no other evidence of having received a direct threat of harm from her ex-husband and accordingly the Tribunal found that she has not received a direct threat of harm from her ex-husband.

1. The Tribunal concluded, and so found, that there is no real chance of, as opposed to one that is remote, that the applicant will be persecuted upon her return to Vietnam by reason of her membership of a particular social group being people who owe money to ex-relatives or for any other reason set out in s5J(1)(a). It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution for this reason claimed if she returns to Vietnam, now or in the reasonably foreseeable future.

2. 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).

   Is there a real risk that the applicant will suffer significant harm on her return to Vietnam?

3. 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), that being whether on the evidence there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.

4. For the reasons that are set out above the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Vietnam. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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

6. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Paul Noonan
   Member