1621593 (Refugee)

[2018] AATA 2314

1621593 (Refugee) [2018] AATA 2314 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621593

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Michael Hawkins

DATE:2 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 July 2018 at 4:30pm

CATCHWORDS
Refugee – Protection visa – Vietnam – Harm – Domestic Violence –Protection order – Second husband – Connections to the Mafia – Debt – Sign papers under duress – Inconsistent evidence – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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 6 November 2014 and the delegate refused to grant the visa on 23 November 2016.

   RELEVANT LAW

3. 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

4. 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).

5. 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.

6. 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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

14. 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’).

15. ‘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.

16. 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

17. 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.

    CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

19. The applicant is a [age] year old woman born in [Town 1], Lang Son, Vietnam.

20. The applicant is of the Buddhist faith, Vietnamese ethnicity and she speaks Vietnamese and English.

21. The applicant attended school in [Town 1] from September [year] to June [year].The applicant’s mother and [siblings] live in Vietnam. The applicant’s two sons, from her first marriage, live in Vietnam.

22. The applicant has worked consistently in Vietnam from [year] to 2011 in [two occupations].

23. The applicant was granted a [temporary] visa on 27 June 2008 (valid to 27 June 2009) and arrived in Australia on 4 July 2008. She departed Australia on 3 October 2008. She returned again on 5 April 2009 and departed again on 26 June 2009.

24. The applicant was granted a [temporary] visa on 4 August 2014 (valid to 13 November 2014) and arrived in Australia on 13 August 2014 under passport [number deleted] issued on [date] 2008 and valid until [date] 2018.

25. The applicant applied for a protection visa on 6 November 2014.

26. The applicant attended an interview with the delegate on 18 March 2016. The applicant did not provide additional information in support of her claims prior to the decision by the delegate. The applicant did provide a submission prior to this hearing.

    Claims:          

27. The applicant claims she was subjected to domestic violence at the hands of her first husband, a Vietnamese citizen, during their marriage of eight years ("her Vietnamese husband").

28. The applicant claims she was also subjected to domestic violence in Vietnam and Australia at the hands of her second husband, [Mr A], an Australian [citizen].

29. The applicant claims that [in] September 2014 [Mr A] stabbed her and she threatened to return to Vietnam and get a divorce.

30. The applicant claims that [Mr A] threatened that if she wanted a divorce she would get "nothing in Australia" and he would kill her and her [boys].

31. The applicant claims that [Mr A] has friends in powerful positions in Vietnam, including local police officers, and he has connections with the mafia.

32. The applicant claims she fears that [Mr A] will kill her upon return to Vietnam.

33. The applicant claims she fears that [Mr A] will force her to sign papers that she gave him money then she will be in debt to the Mafia.

34. The applicant claims that [Mr A] has stolen money from her.

35. The applicant claims the Vietnamese police are corrupt and work with the Mafia.

36. The applicant claims she cannot avail herself of State protection.

37. The applicant claims she cannot prevent [Mr A] coming to her house in Vietnam and assaulting her.

38. The applicant claims that if she seeks protection from the Vietnamese Police regarding [Mr A]'s violence, they will turn her away and tell her they do not want to get involved with a family matter.

    Evidence:

39. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and signed on 5 November 2014, lodged on 5 November 2014 (“visa application”);
    • The applicant’s identity documents being a certified copy of passport;
    • The protection visa decision record (‘delegate’s decision record’) of 23 November 2016;
    • The review application form which did include a copy of the delegate’s decision record;
    • Submission from the applicant’s representative dated 18 May 2018, attaching Affidavit of the applicant dated 22 May 2017;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Vietnam, published on 21 June 2017.

    Country of reference / receiving country

40. The applicant claims to be a Vietnamese national. Based on the copy of identity documentation, including her passport, provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

41. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

42. The applicant attended the hearing on 21 May 2018 accompanied by her partner, [Mr B]. She was represented by [a law firm]. The hearing was assisted by an interpreter in the Vietnamese and English languages.

43. The Tribunal asked the applicant about the completion of the applicant’s Protection Visa application forms. The applicant said she completed the form with the assistance of a domestic violence support group and she signed it herself.

44. The Tribunal read to the applicant the applicant’s claims as set out in paragraphs 27 to 38 above.

45. In relation to the claim in paragraph 33, the claim should read that “she fears that [Mr A] will force her to sign IOU’s that she owes him money and then the Mafia will chase her if it is not repaid”.

46. In relation to the claim in paragraph 34, the claim should read “that [Mr A] took money from her, such money being their joint funds.”

47. The applicant confirmed that apart from the amendments aforementioned, the claims were all accurate and complete. The representative confirmed that he believed the claims were accurate and complete.

48. There were no additional claims.

49. The Tribunal noted that the applicant arrived in Australia on 13 August 2014 and made a protection visa application on 6 November 2014, a few days before the expiry of her [temporary] visa. The Tribunal also noted that it was on 18 September 2014 that the applicant asked [Mr A] for a divorce. The Tribunal asked whether the applicant had sought to obtain a partner visa. She said that she had tried in 2008 to obtain a visa, but her first husband would not allow the children to leave Vietnam. In 2014, she and [Mr A] inquired about a partner visa, but they discovered that it would cost $7,500 or more. She said the fees were too high, and apparently [Mr A] said that he would apply for her, but in the end he did not.

50. The Tribunal asked the applicant why she didn’t make her protection claims until a few days before the expiry of her [temporary] visa. She replied that she had always intended to return, but [Mr A]’s children told her she should stay.

51. The Tribunal noted that the applicant had secured a Protection Order against [Mr A] [in] November 2014 until [November] 2015. It asked whether he had breached the Order. She said he had not. The Tribunal asked whether she had needed to extend it. She said she had not.

52. The Tribunal agreed to accept that the applicant had been subjected to domestic violence whilst married to [Mr A].

53. The Tribunal asked the applicant whether she knew where [Mr A] was now. She said he was living in a caravan [park]. She said she had had no contact with him.

54. The Tribunal asked the applicant what the affidavit dated 22 May 2017 and filed in the Federal Circuit Court related to. She said it related to her divorce proceedings. Asked whether she was now divorced, she replied that she secured a divorce in Australia in July 2017.

55. The applicant then advised that [Mr A] went to Vietnam to secure a divorce from Vietnam. She said that he needed her address. The applicant stated that she gave [Mr A] her solicitor’s address. [Mr A] turned up at the solicitor’s address demanding to know the applicant’s actual address. The Tribunal asked the applicant how [Mr A] had managed to contact her given that he didn’t know where she was – how did she receive the divorce papers from Vietnam. The applicant explained that the papers were sent to her home address in Vietnam and her family sent them to her in Australia.

56. The applicant stated that she believed the second divorce in Vietnam was all about trying to find out where she lived. The Tribunal asked why she drew that conclusion. She stated that the divorce form required an explanation as to why she couldn’t attend the court in person and needed her actual address.

57. The Tribunal asked where she and [Mr A] were formally married. She said in Vietnam. The Tribunal then asked the applicant whether it wasn’t reasonable for [Mr A] to have his divorce recognised in Vietnam where they were married, where they might have property, and that if the form required her address, wasn’t he reasonable in seeking to have it? And wasn’t she reasonable in replying the way she did. And so on that basis wasn’t she speculating as to the real reason, another more sinister reason, that [Mr A] was seeking to find her. After all, he hadn’t been in contact with her since 2014. The applicant replied that she was 100% certain that [Mr A] wanted to find her for reasons other than seeking a divorce.

58. The applicant explained that she and [Mr A] owned a [vehicle] in Vietnam. The [vehicle] had been parked at a parking station for two and half years – it had been left there by an employee who worked for the applicant. The [vehicle] had accrued two and half years’ worth of parking fees. [Mr A] wanted the [vehicle], but he wanted the applicant to pay the parking fees. And the car park owner wouldn’t release the [vehicle] until the fees had been paid. The applicant claims that [Mr A] wanted to know where the applicant was so that she could pay the fees. The applicant maintains that [Mr A], in seeking to have his divorce finalised in Vietnam, was only doing that to find out where the applicant lived. He said that if she did return to Vietnam, he would withdraw the divorce proceeding in Vietnam, but if she didn’t, he would burn her house down.

59. The Tribunal asked the applicant where she was currently living. She said she was now living in [a suburb]. She was living with her partner, [Mr B]. They had been together since April 2015. They have a [child]. They have commenced the application process for a partner visa. She said that would take a while.

60. The Tribunal asked the applicant about the event in 2014 wherein [Mr A] visited her mother in Vietnam. The applicant stated that he turned up at her mother’s house with three gangsters. [Mr A] wanted her mother to sign an IOU. Her mother didn’t sign it.

61. The applicant produced a transcript of a video excerpt. The Tribunal recalled that a video had been presented at the interview with the delegate, but that no one, including the interpreter, could understand it. The document produced was a purported translation of that meeting at her mother’s house. The Tribunal invited the applicant to explain its relevance. The applicant said there were 5 males present at her mother’s house. The only female was her mother. Of the five, one was [Mr A], two were gangsters, and there were two police officers. The transcript appeared to be a discussion about money, about money that [Mr A] gave “grandma” and “another lady” (presumably the applicant) and that he wants a record of it. The police appear to recommend that it is a debt issue, between family members and not a criminal matter.

1. The Tribunal discussed with the applicant that the police did appear to be correct – that it was a debt or civil issue – not something for them to be involved in. The Tribunal noted the applicant’s statement that [Mr A] had given the applicant and her mother money to look after the children whilst the applicant was in Australia.

2. The Tribunal asked the applicant what the relevance of the document and event was. The applicant replied that it showed that if she was in Vietnam, then the police would say the same thing – that this is a family matter. The Tribunal also noted that it showed that the police responded when the applicant’s mother called them.

3. The Tribunal sought to clarify when [Mr A] made the threat to kill her and her two sons. She confirmed it was [in] September 2014.

4. The Tribunal confirmed that apart from [Mr A] contacting her mother about the IOU and collecting his stuff from the house (the applicant’s mother and sons live in the applicant’s house in Vietnam) and the recent attempt to find her in conjunction with the divorce proceeding (or the collection of accrued parking fees), [Mr A] has not had contact with her. The applicant confirmed she has not seen him (apart from the day he appeared at the [police] station to contest the Protection Order on 24 September 2014) since 18 September 2014. The Tribunal confirmed that [Mr A] doesn’t know where the applicant is. The applicant stated that [Mr A]’s visit to her mother to get the IOU is evidence of the threat he made. The Tribunal confirmed that he didn’t make any threat to her mother, that neither her mother nor sons were harmed, and that the police came when called and [Mr A] and his two gangsters left peacefully.

5. The Tribunal confirmed that [Mr A] made no threat to the applicant’s mother.

6. The Tribunal discussed with the applicant her claim that [Mr A] stabbed her. The Tribunal referred to paragraph 12 of the applicant’s 2014 statement that accompanied her request for a Protection Order. In that statement she said she “….was washing the dishes and asking [Mr A] why he was verbally abusing me in front of his son and wife and why he was so angry. This is when [Mr A] has threatened to stab his own hand with a knife he was holding. I misunderstood and thought he was going to stab me. I grabbed the knife and that is when I received the cut on my left hand.” The Tribunal suggested her claim was not quite accurate – she wasn’t stabbed by her husband as she had in fact grabbed the knife herself. The applicant explained that she was doing the dishes when she told [Mr A] she was leaving. He tried to explain that he was drinking because of his back pain. She said he made a threat to kill her. And then he stood up with a knife and she thought he was going to kill her then. The Tribunal discussed the inconsistency in her written statement to the police and what she now claimed. She maintained she thought he was going to kill her. The Tribunal said it would consider her response.

7. The Tribunal asked whether there were any more dealings between the applicant and [Mr A]. The applicant replied that the property settlement was still happening in Lang Son in Vietnam. The Tribunal asked where the settlement proceedings were at. She said she didn’t know.

8. The Tribunal asked whether [Mr A] was still going to Vietnam to visit. She said she knew he was in Vietnam in November 2017 about the divorce proceedings, but she wasn’t sure whether he was there now.

9. The Tribunal invited the applicant’s witness to comment. The witness was the applicant’s partner, [Mr B]. The witness offered that he believed that if the applicant was in fear of returning to Vietnam then she was.

10. The witness confirmed that [Mr A] has not had any contact with him or with the applicant since he has been around.

11. The Tribunal asked the representative for any comment. He submitted that the applicant feels the threat from [Mr A]. He said that from his own experience in [Mr A] turning up at his office four times that [Mr A] is not a nice person. He said that [Mr A] opposed the divorce application.

12. The Tribunal thanked everyone for their evidence. It expressed its concerns as follows:

    ·The applicant has not received any threats from [Mr A] since 2014;

    ·She has now obtained her divorce;

    ·There is no property settlement in Australia;

    ·When [Mr A] saw the applicant’s mother, there were no threats. The police were called, they responded and a discussion took place – it being agreed by all present that the matter was about money and family loans and was not a matter for the police – and everyone left peacefully;

    ·Despite his 2014 threat, [Mr A] has made no contact with the applicant’s sons;

    ·[Mr A] has made no further contact with the applicant’s mother after removing all of his stuff from her house;

    ·Mr Marshal has never breached the Protection Order and there has been no need to extend it. 

13. There appears to be adequate state protection available in Vietnam. The Tribunal referred to country information[1] that advises that 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.

    [1] DFAT Report, page 22, paragraph 5.4

14. The Tribunal discussed the potential for relocation with the applicant. Could she not move to another larger urban city if she had concerns about moving back to her home village? The Tribunal referred to country information[2] that advised that internal relocation is common….with migration for economic purposes. The applicant replied that anyone could pay the police a bribe and find them through the ID system.

    [2] DFAT Report, page 24, paragraph 5.12

15. The Tribunal asked the applicant about her claims that [Mr A] was associated with the mafia. Did she have proof? She replied that she had lived with [Mr A] for seven years and knew all of his friends. She didn’t know these people. She said these people would have to be gangsters as normal people wouldn’t do what they do. The Tribunal noted that as she didn’t know who the people were, she was only speculating that they had any mafia connection.

16. The Tribunal asked the applicant about her claim that [Mr A] was well-connected to the police. She said they were in the transport business in Vietnam and paid a lot of bribes to police in connection with that business. She said that bribery was quite common. The Tribunal acknowledged that bribery was a way of business in Vietnam – that police often pulled people up in traffic and demanded a “fine”. The applicant agreed. She said [Mr A] therefore knew which police to bribe.

    Assessment of Claims and evidence, and findings:

17. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

18. 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.

19. 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.

20. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

21. The Tribunal has its reservations about the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for herself and to settle down with her new partner. The Tribunal notes that the applicant is in the process of seeking a partner visa, and as discussed with her, such a process takes time, and at present, she requires more time.

22. During the hearing, the Tribunal gave the applicant the opportunity, and discussed with the applicant, the problems she had in Vietnam. The Tribunal discussed where she lived in Vietnam, her reasons for leaving Vietnam, what she had done in Australia and why she fears returning to Vietnam. The Tribunal found her evidence to be lacking in credibility as it was lacking in detail, unconvincing and in places, inconsistent with the evidence she had provided to the delegate, inconsistent with the written claims contained in the written application and inconsistent with independent country information. The Tribunal has strong concerns as to the veracity and genuineness of the applicant’s claims. The Tribunal is of the view that the applicant’s claims are not credible and it does not accept any of the applicants’ claims for the reasons that follow.

23. As noted earlier, the Tribunal accepts that the applicant may have suffered domestic violence at the hands of her two previous husbands.

24. The Tribunal does not accept that [Mr A] stabbed her. The Tribunal considered evidence from paragraph 12 of the applicant’s 2014 statement that accompanied her request for a Protection Order. In that statement she said she “….was washing the dishes and asking [Mr A] why he was verbally abusing me in front of his son and wife and why he was so angry. This is when [Mr A] has threatened to stab his own hand with a knife he was holding. I misunderstood and thought he was going to stab me. I grabbed the knife and that is when I received the cut on my left hand.”

25. When questioned about the apparent inconsistency, the applicant explained that she was doing the dishes when she told [Mr A] she was leaving. He tried to explain that he was drinking because of his back pain. She said he made a threat to kill her. And then he stood up with a knife and she thought he was going to kill her then. The Tribunal is not persuaded by her explanation – she had not made such a claim to the police, in fact had advised that the husband had actually threatened to harm himself. Further, no reference or order was made to a stabbing or an assault upon the applicant in the Protection Order made [in] November 2014.

26. The Tribunal does not accept that the applicant received any threats to kill her or her boys. The Tribunal gives the applicant the benefit of very considerable doubt that [Mr A] may have made threats to her about what outcomes she might expect in divorce proceedings as regards a property settlement, but they are not threats to seriously harm her. And in any event, she has not seen or heard from [Mr A] personally since 2014. She confirmed that [Mr A] does not know where she is, and that when he made an attempt to contact her he went through her solicitor.

27. The applicant claims that she feels threatened by the fact that [Mr A] has attempted to contact her. But as discussed with the applicant, it may well have been that he did need to contact her in relation to the divorce proceedings in Vietnam, which proceedings he is entitled to bring. Furthermore, and as alternatively claimed, he may have wanted to contact her in relation to the outstanding parking fees incurred by the [vehicle] left at a parking station for two and half years by her employee. The fact remains that he has not contacted her, except through her solicitor, and he does not know where she is.

28. In relation to the threat about her “getting nothing in Australia”, the applicant has confirmed that there will actually be no property settlement in Australia as there is no property in Australia.

29. The Tribunal does not accept that threats have been made to the applicant’s mother or her sons, as she confirmed that [Mr A] has not made any threats to any of them.

30. The Tribunal does not accept that [Mr A] will force the applicant to sign papers that she owes him money. The applicant confirmed that [Mr A] had advanced money to her and her mother. [Mr A] had visited her mother seeking a signature on a document that purportedly was an IOU. The mother did not sign it, the police attended, all agreed it was a civil matter, all partiers left peacefully and [Mr A] has not visited her mother again since, except to collect his possessions. The applicant confirmed that [Mr A] has never threatened her mother.

31. The Tribunal does not accept that the applicant had money stolen from her by [Mr A]. The applicant’s evidence is clear that the money in dispute was money in a joint account, and it belonged to both of them.

32. The Tribunal does not accept that [Mr A] has friends in powerful places in Vietnam. The applicant has not provided any substantiation, or evidence of any kind, to support this claim.

33. The Tribunal does not accept that [Mr A] has connections with the mafia. The applicant has not provided any substantiation, or evidence of any kind, other than a vague assertion that as she lived with him for seven years and knew all of his friends, but didn’t know the people who accompanied him to her mother’s place, that they must be mafia. The conclusion is speculative and far-fetched. The Tribunal rejects this claim in its entirety.

34. The Tribunal does not accept that [Mr A] has powerful connections with local police officers. The applicant has not provided any substantiation, or evidence of any kind, other than a vague assertion that as they pay regular bribes to local officers, he knows which ones to bribe. The country information discussed confirmed that paying bribes is a way of doing business in Vietnam – it did not suggest that it gave [Mr A] any preferred position with the local police. Indeed when the applicant’s mother attended her house when [Mr A] and his colleagues were attempting to secure a signature to an IOU, the police did not turn a blind eye to [Mr A]’s activities.

35. Consequently, the Tribunal finds that that the risk or chance of the applicant being threatened, assaulted or killed in Vietnam in the reasonably foreseeable future is remote. The applicant has identified no other factors which would provide a motivation for her to be assaulted, threatened or harmed if she returned to Vietnam.

36. The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Vietnam.

    Cumulative claims

37. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in her application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if she returns to Vietnam now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Vietnam. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm

38. The Tribunal has considered the applicant’s claims under complementary protection. 

100.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Vietnam now or in the reasonably foreseeable future.

101.   The applicant’s claim to complementary protection is essentially the same claim she made in her application for protection as a refugee. Those claims have failed because the Tribunal does not accept that the claims are credible and has not accepted them.

102.   For the sake of completeness, the Tribunal notes that the country information indicates that the Vietnamese authorities including the police and judiciary are reasonably effective in combating criminal gangs and there has been a great deal of coverage in Vietnamese media regarding the various operations by law enforcement authorities to combat this. The Tribunal also notes that although there is corruption within the system, there is nothing in any of the information or responses provided by the applicant to indicate that the state is unable or unwilling to protect the applicant if she has concerns about her husband and his connections in the future. The applicant’s own evidence confirmed that the police responded immediately to her call when her mother was concerned about the presence of the applicant’s husband at her house. The Tribunal is satisfied that the applicant could avail herself of protection from the authorities if she had any concerns about her husband and his connections in the future.

103. Overall the Tribunal is satisfied that if in the future, her husband or his connections should attempt to harm the applicant, there are mechanisms in the Vietnamese legal system, including a reasonably effective State police force (that country information demonstrates is active and committed to taking action in relation to the claimed fear) that could provide protection sufficient to reduce the likelihood of harm to something less than a real risk in accordance with s.36(2B)(b). The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk she will suffer arbitrary deprivation of her life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if she returns to Vietnam. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

104. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

105.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm.

Overall conclusion:

106. 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 s.36(2)(a).

107. 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).

108. 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

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

Michael Hawkins
Member