1618993 (Refugee)

[2019] AATA 1225

1618993 (Refugee) [2019] AATA 1225 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618993

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:25 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 January 2019 at 3.54pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – victims of revenge attacks by criminal gangs – attacks on home – corrupt connections to authorities – protection money – physical assault – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5J, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant S v MIMA [2004] HCS 25
Chan v MIEA (1989) 169 CLR 37
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 October 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 11 September 2014. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations under s.36(2)(a) and s.36(2)(aa) of the Act.

3.The applicant appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

RELEVANT LAW

5.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

6.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).

7.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.

8.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.

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

10.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

[1] s.91R(1)(b)

[2] s.91R(1)(c) of the Act

11.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.

12.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.[3]

[3] s.91R(1)(a) of the Act

13.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.

14.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.

15.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

16.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’).

17.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  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.[5]

[4] s.5(1) of the Act

[5] 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 issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant’s migration history

20.The applicant arrived in Australia [in] April 2008 on a as the holder of a [temporary] visa. [In] August 2008 the applicant became an unlawful non- citizen. On 11 September 2014 the applicant applied for a Protection (Class XA) visa and an associated bridging visa and on 12 September 2014 he was granted an Associated Bridging C visa.

Country of Reference

21.In his application the applicant claims to have been born [on date] in Vietnam and is a citizen of Vietnam. The departmental file ([number]) contains a copy of the applicant’s passport which states that he was born [on date] in Bac Lieu, Vietnam, Therefore, in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Socialist Republic of Vietnam and his protection claims will be assessed against Vietnam as the country of reference and 'receiving country' respectively.

The applicant’s protection claims

22.The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

23.The applicant’s written claim for protection are contained in his application for a protection visa dated 14 September 2014 by the Department (‘the protection application’) (‘the written claim’) as follows:

Why did you leave that country?

‘I left Vietnam because I no longer feel safe living there, living in Vietnam poses a great threat to myself and my family as the past 6 years have been a living nightmare for me and my family. Leaving Vietnam provides a safer environment for my family and relatives as I am the main target for revenge by a local gang, who is the back bones are the local authorities.’

Have you experienced harm in that country?

‘No only have I been harmed but those who have helped me from harm’s way have also been harmed. On many occasions my house was robbed, vandalised and trashed. Our family business was forced to shut down as we were scared away by these gangs’ members. I have been physically abused on every occasion trying to defence our home and business. My relatives have also been physically abused many times in an attempt to help me.’

What do you think will happen to you if you return to that country?

‘Goin back to Vietnam now would only put my life and the life of my family and relatives at risk. As a target for revenge, these gangsters would not let me live in peace. They will do all they can to get their revenge and show their power to prevent anyone else from standing up to them.’

Who do you think may harm/mistreat you if you go back?

In June 2008, our family business was robbed by the local gang. We reported it to the local police but no arrest was made. We took our video surveillance footage to the district authority. It was then that some of the gang members were arrested and jailed. Since that, not a day goes by without a bad incident occurring to us. We were forced to close our business and living like prisoners in our home. We were too scared to leave our home, fearing for our safety as these gangsters rules the streets.’

Why do you think this will happen to you if you go back?

‘We were not the only people that was robbed and hurted by these gangsters. There have been many others. Many have closed their business and those who choose to stay open pays protection fees. They will hunt me until I no longer exist. This will demonstrate to other not to go against them as well as the fact that they want to show their power to stop others from intruding and invading in their territory.’

Do you think the authorities of that country can and will protect you if you go back?

‘They only way that the authority can protect me and my family is to arrest each and every one of these gangsters. These kinds of gangs cannot and will not shut down as the main source of income for these corrupt authorities are from these gangs. Arresting and shutting down these gangs would only restrict their income.’

The applicant’s evidence

24.The applicant’s evidence to the tribunal was that he was born on [date] in Bac Lieu, Vietnam. His parents are still alive and live in Bac Lien. His father owned business [but] now is retired. His mother was engaged in home duties. The applicant stated that he has [specified siblings]. One [sibling] continues to live in Bac Lien while [others] are residents in Melbourne, Australia. [A further sibling] lives in [another country].

25.The applicant stated that he was married to [name] in or about 2000 to whom he has a son, [named], born in on [date].  He said that his is now divorced for his wife and she has remarried. The applicant did not provide any documentary evidence in relation to his marriage or divorce or any details of his son. 

26.The applicant attended [a school] in Ca Mau Province. The applicant’s evidence was that he had attended University and obtained a degree in [subject].  The applicant did not provide any evidence as to which University he attended or having completed a degree in [this subject]. Nevertheless, he stated that upon completing his degree he commenced owning and operating [a] business in Bac Lieu for approximately [number] years before arriving in Australia. 

27.The applicant claims that he fears returning to Vietnam due to the fact that gang members have demanded money from him. He said in or about March 2006 gang members had demanded protection money. He said that his house had been robbed, vandalised and trashed. He said that his family business had been forced to shut down as he had been physically abused trying to defend his home and business. The applicant could not recall the precisely the number of times the gang members had demanded money from him but claimed that it may have been 6-7 times. The applicant claimed that he had contacted the police on each occasion that the gang members threatened him. He was not able to provide any documents in relation to his reports to the police.

28.The applicant claimed that on around three occasions he paid the gang members money. He said that he had paid them approximately [amount range] Dong (approximately AUD[amount range]) on around three occasions, however, he was not able to provide any documentary evidence of the payments.

29.The applicant claims that after he fled from Vietnam the gang members continued to call at his house demanding money from his wife and child. As a result they also fled.

30.The applicant claims that on each occasion the gang member’s visited his house he was beaten and abused. As a result he says that fears returning to Vietnam. He claims that even after the passage of time he will be pursued by the gang members for the money. 

COUNTRY INFORMATION

31.The DFAT Country Information Report Vietnam dated 21 June 2017 states as follows:

Economic Overview[6]

[6] DFAT Country Information Report Vietnam dated 21 June 2017 @ p.6

2.8 The World Bank describes Vietnam as ‘a development success story’. Economic reforms (known as Đổi Mới or ‘Renovation’ reforms) launched in 1986 transformed the country from one of the poorest in the world at that time to ‘low middle income status’ over a period of 25 years. Its per capita GDP growth is recognised as one of the fastest in the world, with per capita income moving from USD100 in the early 1990s to around USD2100 by the end of 2015.

2.9 While the national poverty rate has declined significantly, from 58 per cent in the early 1990s to 13.5 percent in 2014, it is still above 50 per cent in ethnic minority areas. Rural populations are susceptible for falling back into poverty due to declining productivity growth and economic vulnerabilities. Recurring environmental effects and Government decisions relating to land acquisition and manufacturing or mining production are more likely to affect rural populations.

2.10 Vietnam is ranked 115 out of 188 countries in the latest United Nations Human Development Index (HDI). Transparency International’s 2016 Corruption Perceptions Index (CPI) ranked Vietnam 113 out of 176 countries; compared with Cambodia at 156, Laos at 123, Thailand at 101 and China at 79.

Security Situation[7]

2.28 Security and law enforcement personnel are highly visible throughout Vietnam, particularly during politically sensitive occasions or potential demonstrations. Organised crime groups exist and engage in prostitution, extortion, gambling, illicit drugs and people trafficking/smuggling operations.

2.29 Petty crime, including bag-snatches and theft, occur regularly in larger cities and towns. Violent crimes (murder, armed robbery, kidnapping) remain rare.

2.30 Protest activity does occur, often linked to land use and compulsory acquisition of land by the Government. All land is formally owned by the Government, which issues land use rights to individuals or organisations, but retains the right to acquire the land for a broad range of purposes at any time. Disputes over land use rights can lead to protests and occasional violence (see Political Activists for further information).

[7] OpCit @ p.9

32.As to the effectiveness of the Vietnam police force the Department of Foreign Affairs and Trade Report (‘DFAT’) dated 21 June 2017 (’the DFAT Report’) advises as follows:[8]

[8] OpCit @ p.22

Police

5.4 Internal security is the responsibility of the Ministry of Public Security, although the military maintains public order in the event of civil unrest in some remote areas. Police organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.

5.5 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.’

Judiciary[9]

5.6 The Vietnamese judiciary consists of: Supreme People’s Court (SPC), which is the highest court of appeal and review; Provincial People’s Courts, which serve as the appellate courts for district cases and the courts of first instance for more high profile cases; local people’s courts; and other tribunals established by law to adjudicate on specific issues. Each district throughout the country has a district people’s court, which serves as the court of first instance for most domestic, civil, and criminal cases.

5.7 Prosecutions are managed by the Supreme People’s Procuracy (SPP). The SPP has broad ranging power to bring charges against suspects and serves as prosecutor during trials. A judging council, made up of a judge and one or more people's jurors, determines guilt or innocence and also passes sentence on the convicted. The relevant people’s council appoints people’s jurors.

5.8 Courts at all levels are effectively controlled by the CPV, which has power over appointments. Judges tend to be CPV members chosen in part for their political views and affiliations. Varying quality of court processes lead to inconsistent interpretation and implementation, police investigations are opaque and abuse of process is reportedly widespread. Citizens can spend years in pre-trial detention. There are reports from credible sources that only 20-30 per cent of defendants had access to legal counsel, including in cases involving the death penalty or juveniles where the law theoretically required authorities to appoint a lawyer.

[9]    OpCit @ p.23

33.In relation to the gangs operating in Vietnam the Thanh Nien News[10] reported that police throughput Vietnam say they are cracking down on gangs of increasingly bold criminals who appear undeterred by the nation’s drug laws. It reports that the city police had spent the previous week rounding up four members of another gang smuggling syndicate that attempted to smuggle three kilograms of meth from Cat Bi airport to Ho Chi Minh City on 7 August 2014. It reported that on 15 August 2014 the same officers cut power to the whole neighborhood in Kien An District to arrest drug Kingpin Vu Dinh Chien. The report notes that Vietnam has some of the toughest drug laws.

[10]    Cops in Vietnam continue to crack down on gangs of smugglers, robbers.’ Thanh Nien News, 19 August 2014, CX1B9ECAB12445

34.The Tuoi Tre News reported in January 2019 that the leader and several members of an organized criminal organization in Vietnam were taken into custody by the Department of Criminal Police.[11] It reported that Lam Thanh Vu, aka Vu Bong Hong (Vu ‘Rose’), and several of his associates were being held while an investigation is carried out into the group’s alleged loan sharking, gambling, unlawful debt collection, and protection rackets.

[11] Toui Tre News, ‘Vietnamese officials arrest leader of massive organized crime ring’ 11 January 2019 assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

Applicants delay.

36.The applicant’s delay in lodging the protection visa is a concern to the Tribunal. The Tribunal notes that it is 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.[12] In this case the applicant arrived in Australia [in] April 2008 on a [temporary] Visa and became an unlawful non-citizen [in] August 2008. The applicant remained unlawful until 12 September 2014. A period of approximately 6 years. The applicant’s evidence was that since arriving in Australia he has lived with his [siblings] in Melbourne and owned and operated a [business] in [Melbourne].

[12] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.

37.The applicant’s evidence was that he did not make any application for a protection visa earlier because he had not been aware that he could make such an application.  However, the Tribunal would have expected that, if the applicant had a genuine fear of persecution upon his return to Vietnam, he would have made the application for protection as soon as possible after his arrival in Australia. In circumstances where the applicant is an educated person and who has been working and living with his [siblings], [whom] have been granted visas to live permanently in Australia, it does not accept that the applicant’s evidence that he was not aware he could make an application for protection.

38.Rather, the applicant has remained in Australia unlawfully for a period of 6 years conducting his own business before making his application for protection visa.  The applicant’s delay in making his application for a protection visa indicates to the Tribunal that he does not hold a genuine fear of being persecuted or significantly harmed upon his return to Vietnam.

Applicant’s claims as a refugee

Membership of a Particular Social Group.

39.The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S v MIMA [2004] HCS 25 Gleeson CJ, Gummow and Kirby JJ[13] in considered whether a group falls with the definition of a particular social group said as follows:

‘First, the group must be identifiable by a characteristic to attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group for society at large. Borrowing the language of Dawson J in Applicant A…a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a particular social group.’

[13]   Applicant S v MIMA [2004] HCS 25 Gleeson CJ, Gummow and Kirby JJ @ [36]

40.In this case the applicant submits that he is a member of a particular social group as defined by its shared characteristicbeing people who owe money to a gang in Vietnam. The applicant’s evidence was that he had been threated and harassed by gang members for the payment of protection fees. The Tribunal has some difficulty in accepting the applicant is a member of a particular social group. It is not convinced that by having been threatened by gang members for protection fees constitutes a shared characteristic that it would be considered so innate and unchangeable characteristic as to fundamentally identity of the applicant as a member of a group separating him for the rest of society.  Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of the particular social group as defined. 

41.Therefore, having regard to the the Applicant S v MIMA, the Tribunal finds that the applicant is a member of a particular social group being ‘people who owe money to a gang in Vietnam’. .’  

Fear is well-founded.

42.The test in relation to a well-founded fear is whether there is a real chance of persecution upon return to the relevant country on both an objective and subjective basis.[14] That is a fear of persecution exists if there is a real chance the applicant will suffer serious harm on return to their country of origin.[15] The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for the reason claimed. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.

[14] Article 1A(2) of the Convention.

[15] Chan v MIEA (1989) 169 CLR 379

43.It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[16]

[16] s.5AAA Migration Act 1958. MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

44.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[17] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. In assessing whether the applicant’s fear of being harmed on his return to Vietnam in the reasonable foreseeable future is well founded, the Tribunal has considered the supporting documentation, the submissions made by the applicant and his evidence presented at the Tribunal hearing.

[17]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

45.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[18] However, such a benefit should 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.

[18]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

46.The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the applicant failed to provide the Tribunal with plausible, emotionally compelling or persuasive answers to its questions to support his claim that he feared returning to Vietnam because of being harmed by gang members demanding protection money. For example, the applicant was not able to provide specific details (eg dates and times) in relation to his house being robbed, vandalised and trashed or of the details of visits by gang members to his home. In addition the applicant was not able to provide any independent or documentary evidence to support his claim that he had been threatened by gang members including any bank statements, receipts or deposit slips that may evidence any transactions between him the and the gang and/or copies of police reports made by the applicant.

The gang claim

47.By his protection visa application the applicant claimed that gangs in Vietnam had demanded protection money from him and beat him. The applicant did not provide any independent evidence in relation to his claim. In addition he was no able to provide the Tribunal with any documentary evidence of the payment of money or demands made by gang members. The applicant’s answers to the Tribunal’s questions in relation to the threats he had received and the alleged beatings by gang members were vague and lacking in any detail. He did not provide the Tribunal with any specific dates or times as to when he was threatened and beaten as claimed, he did not identify the name of the gang and he did not provide any specific details relating to the nature of his beatings and injuries he may have suffered. The applicant claimed that he made reports to police, however, when asked if he was able to provide any copies of the police reports to the applicant he was not able to do so.

48.The applicant claimed that on many occasions his house was robbed, vandalised and trashed and that his family business was forced to shut down. However, he did not provide any evidence of his house being robbed, vandalised and trashed as claimed. In relation to his family business, the applicant said that he and his family were scared away by these gangs’ members causing the business to shut down. It seems unlikely that as the very source of income by which to be paid that gang members would force the applicant’s family business to close down.  In any event, the applicant did not provide any independent evidence as to circumstances of his business closing down. He also claimed that his relatives have also been physically abused many times in an attempt to help him. However, no evidence was provided by family members and relatives to support his claim.

49.Finally, he said that after he fled Vietnam for Australia the gang members continued to visit his home and his wife and child causing them to flee. However, the applicant was not able to provide the Tribunal with any evidence of where they fled to and the circumstances of their departure.

50.As a result, due to the fact that the applicant was not able to provide the Tribunal with coherent and plausible answers to its questions together with the fact that he was not able to provide any independent evidence from his family and friends to support his claim or provide any documentary evidence of payments made to the gang members, the Tribunal does not accept the applicant’s evidence and finds that his family business was not forced to shut down by gang members, that his relatives were abused as a result of attempting to help him or that gang members continued to visit his house after he left causing them to flee. 

51.Therefore, based on the applicants delay in making his application for protection visa and the fact that his evidence in relation to his claim was vague and lacking in any detail, the Tribunal does not accept that the applicant’s evidence that he was threatened by gang members form protection money as claimed. In addition, it finds that he was not beaten by gang members and that they did not rob, vandalise and trash his premises as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed by gang members in the event that he returns to Vietnam.

Effective Protection

52.Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution.[19] Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection.[20]In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards.[21] Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

[19] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].

[20] Op Cit per Gleeson CJ, Hayne and Heydon JJ, at [28].

[21] Op Cit per Gleeson CJ, Hayne and Heydon JJ, at [29]

53.Having considered the available country information, the Tribunal considers that if the applicant had a subjective fear of being harmed by gang members upon his return to Vietnam as claimed (which it specially finds he does not) then it considers that the applicant has access to effective protection measures as a victim of a gang. During the course of the hearing the Tribunal referred the applicant to the country information which reports that the police are ‘generally effective at maintaining public order’[22] and that they have exercised a crackdown on gang operations.[23] The applicant’s responded that the police were not effective in providing protection. However, the applicant evidence was that he made reports to the police after each time he was threatened by gang members. This at least displays some belief by the applicant that the police would be able to provide him some protection.Therefore, while the Tribunal accepts that gangs are widespread in Vietnam, based on the available country information, it does not accept that their activities are so extensive that the applicant would be denied effective protection measures. In addition, while the tribunal accepts that corruption does exist in Vietnam, based on the country information the Tribunal does not accept the applicant’s assertion that the main source of income for corrupt authorities is from gang members.  Therefore, the country information indicates, and the Tribunal finds, that that the State is able and willing[24] to provide effective protection measures to the applicant.[25] In addition it finds that he is able to access the available protection measures and that such protection is durable. The Tribunal finds that the Vietnam has an appropriate criminal law that provides effective protection to the applicant. Finally, it has a police force that provides reasonably effective protection and a judicial system that is impartial in the determination of criminal cases.  Therefore, it finds that by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of a gang.

[22]    DFAT Country Information Report Vietnam dated 21 June 2017 @ p.22

[23]   Cops in Vietnam continue to crack down on gangs of smugglers, robbers.’ Thanh Nien News, 19  August 2014, CX1B9ECAB12445

[24] S.5LA(1)(b) of the Act

[25] s.5LA(1)(a) of the Act

54.Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from threats and demands by gang members in Vietnam, in the event he returns to Vietnam from Australia, now or in the reasonably foreseeable future.

55.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real chance that the applicant will suffer serious harm.

56.The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is not a person to whom Australia has protection obligations under the Refugees Convention.

Complementary Protection Criteria

57.The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. ^[26]

[26]    MIAC v SZQRB [2013] FCAFC 33,

58.The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant’s economic circumstances. 

59.Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’.[27]

[27] MIAC v MZYYL [2012] FCAFC 147

60.In any event, based on the available country information, the Tribunal considers that if the applicant the applicant has access to effective protection measures as a victim of a gang. During the course of the hearing the Tribunal referred the applicant to the country information which reports that the police are ‘generally effective at maintaining public order’[28] and that they have exercised a crackdown on gang operations.[29] The applicant’s responded that the police were not effective in providing protection. However, the applicant’s evidence was that he made reports to the police after each time he was threatened by gang members. This at least displays some belief by the applicant that the police would be able to provide him some protection. 

[28]    DFAT Country Information Report Vietnam dated 21 June 2017 @ p.22

[29]   Cops in Vietnam continue to crack down on gangs of smugglers, robbers.’ Thanh Nien News, 19  August 2014, CX1B9ECAB12445

61.While the Tribunal accepts that gangs are widespread in Vietnam, based on the available country information, it does not accept that their activities are so extensive that the applicant would be denied effective protection measures. In addition, while corruption does exit in Vietnam, the country information does not support the applicant’s claim that it is the primary source of income for authorities.  Accordingly the Tribunal finds that the level of protection in Vietnam is such that it reduces the risk of the applicant being significantly harmed to something less than a ‘real risk.’

62.Therefore, having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

Conclusions

63.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 Act.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

64.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complimentary protection criterion in s.36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

65.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

66.The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Member