1701505 (Refugee)

1701505 (Refugee) [2019] AATA 6510 (12 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701505
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Sean Baker
DATE:12 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 September 2019 at 12:51pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – hardship through general socioeconomic and political/legal conditions – fear of harm by creditors – long unlawful residence in Australia – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 11 December 2015. The delegate refused to grant the visa on the basis that the applicant had not provided sufficient evidence to support his claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for one of the enumerated reasons or whether there is a real risk of significant harm if the applicant is returned to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and identity
The applicant provided a copy of his Vietnamese passport to the Department and to the Tribunal. On the basis of this evidence and with no evidence to the contrary, I find that the applicant is a national of Vietnam, which is his receiving country.
There is no evidence before me to support a finding that the applicant has a right to enter and reside in any safe third country, and I so find.
Claims
The applicant’s written claims were brief and undetailed. His claims at hearing were more detailed but differed in important respects from those made in his protection application.
In his protection application, the applicant said that he left Vietnam because of distrust of the judiciary and law enforcement, the poor system of government, bureaucracy, poverty and unemployment. He said he had been living in harsh conditions and had to borrow money from relatives and could not pay the debt. He lived in mental distress and fear. He says that many people in Vietnam who have problems like him have been hit, injured and killed.
He said that if he returned to Vietnam he would get caught by his creditors and could be beaten, injured or killed. He said that they will search for him.
When asked if he had experienced harm in Vietnam he said that he had and said that he had received verbal threats from them saying they would hurt him, and besides that he had lived in hardship because of the bad economy.
When asked if he had sought help within the country he said that he had but that nothing had happened because this is a matter of the economy of the country, which they consider a personal problem.
When asked if he had tried to move he said he did not try to move to another part of the country because this was a socio-economic problem and he would experience the same problem even in another place.
When asked if he would be harmed or mistreated if returned he said that he would live in harsh conditions and suffer discrimination for [Country 1] women.
When asked if the authorities could protect him he said they could not because this is a socio-economic matter. For this reason he would be unable to relocate.
The applicant provided copies of his Vietnamese passport and identity card to the Department.
The applicant was not invited to an interview before the Department, and the delegate decided the case on the basis that the applicant had not provided enough information to satisfy the requirements.
The applicant applied for review, and provided a copy of the delegate’s decision.
The applicant appeared at a hearing on 11 September 2019.
At the hearing the applicant said that a non-Vietnamese person had helped him to fill in his protection application, and that someone had translated this from Vietnamese to English and he considered it the truth.
He said that he had been born in [Town 1], that his father had remarried and he had no contact with his father since he was a child, and his mother had passed away. The applicant has [remaining] siblings, who both live in Melbourne, Australia. The applicant has a wife, who lives in Da Nang and he has two children who as far as he is aware live in Da Nang as well. He said his wife is filing divorce papers against him.
The applicant said that his mother had sold [produce] near a [produce] shop, and in the period when many people were departing Vietnam unlawfully, she had been arrested on suspicion of attempting to depart Vietnam unlawfully. The applicant said he thought this had been around 1987 when he had been about [age]. He said his mother was detained for about 3 to 6 months. He said that after his mother had been released from detention she told him that she had been beaten by the police. Her health deteriorated after the detention. With the help of his uncle his mother fled to [Country 2], and the applicant travelled to [Country 2] shortly after. He said that he was in [Country 2] for nearly 5 years. Because of the torture she had experienced in detention in Vietnam, she was admitted to hospital all the time in [Country 2] and was a disabled person he said. He and his mother were unsuccessful to being relocated to a third country, and so were returned to Vietnam in 1992. In 1995 his mother died.
The applicant initially said that he had dropped out of school in grade [number]. When I noted that in his application and said he had completed high school, he said that he had resumed his education in [Country 2] and completed high school there. When I noted that his application form appeared to indicate that he had completed high school at a Vietnamese institution, he then said that he had completed high school in [Country 2], but had been enrolled in the local school when he had returned to Vietnam.
I asked the applicant whether he had worked in Vietnam and he said that he had started to work after being returned from [Country 2], when he was under 20, helping in the [industry]. I asked if he done any other work in Vietnam and he said he had been involved in [work activity]. I asked if he had done any other work and he said he had not. I noted that in his application form he said that he had driven a taxi. He said yes when he had married and lived with his wife he learned to drive, and when he had answered before that he had not done any other work, he had thought I meant before he got married.
The applicant said that he had been sponsored to come to Australia by his sister, and agreed that he had arrived in Australia in March 2009. I asked how long his Visa had been for and he said only three months. I asked what he had done after the three months were up and he said he did not want to return to Vietnam, he was wanting to apply for permanent residency. He said he did casual work to survive, and agreed that he did not have permission to work. He agreed that after June 2009 he was unlawfully in Australia.
I then asked the applicant what had happened to him in Vietnam that made him fear returning there. He said that he was a witness of his mother’s case. He said that he was too young to know exactly what happened, and she was arrested in another village, but when she was released back home she had told him she was beaten in her chest and became ill. He said that this happened in around 1987. I asked how he was a witness and he said that when his mother was arrested he was under [age] years old, but his uncles and auntie’s know about this.
I questioned if anything had happened after his mother was released and he said after she was released from detention she could not work anymore, and then their uncle organised for her to travel to [Country 2]. He said that they lived there for almost 5 years, and returned to Vietnam in 1992. I asked if anything happened to his mother after they returned in 1992, and he said that nothing happened to her but when she returned to Vietnam she was a disabled person. I asked if she had any problems with the authorities after their return in 1992, and he said the situation became a bit better because now she was considered a disabled person and was admitted to Vietnamese hospital all the time, so there was no issue with the government.
I queried if he had had any problems with the authorities in Vietnam, and he said generally he did not have any problems with the Vietnamese local government, but he thought the Vietnamese government was not as good as the Australian government. I asked if he was saying that he had not had any problems with the authorities and he said that was correct.
I asked if he had had any problems or difficulties in Vietnam, and he said there were problems for him after being repatriated from [Country], because when he applied for a job it became harder for him to be selected compared to other people who had never left the country. I noted that he had been able to find work in the [industries] as well as driving a taxi. He agreed, saying these type of jobs were available for everyone as they had not done anything illegal.
I questioned if he had been harmed or threatened by anyone in Vietnam. He said since he had returned to Vietnam he did not commit illegal things and abate all the laws. I asked again if the authorities, or anyone else, had harmed or threatened him in Vietnam. He said there was not any harm or threat.
I asked what he thought may happen if he went back to Vietnam. He said when thinking about being returned to Vietnam he had fear because of what happened to his mother and what life is like in Vietnam, and because the government does not care about people, and he did not want to be returned.
I noted that he had departed Vietnam for Australia legally, and he agreed, and asked why then he would have any difficulties if returned now. He said yes he had departed legally, but since he had arrived in Australia he could see that this is a good country, people are treated humanely and everything is fair.
I queried if he thought he would suffer persecution or significant harm if he went back to Vietnam. He said he did not know about that. I asked if he had to go back, what did he think would happen to him. He said he would have to withstand that. I asked if he thought anyone may harm him if he went back. He said he could not think about that fact. I asked what he meant and he said he could not predict the things that would happen. I asked if there was any reason he would be threatened or harmed if he went back to Vietnam. He said it relies on his mother’s case, she was healthy and hard-working, and she ended up becoming a disabled person. I noted that on what he had told me I might take the view that he could return to Vietnam and that he would not suffer persecution or significant harm. I asked if there was any other reason or basis he might be harmed on return, and he said he could not think of anything else.
I questioned whether the applicant thought he would have any difficulties on return, because of his departure for [Country 2] in 1988. He said he would. I noted that he did not seem to have had difficulties because of this after returning to Vietnam in 1992 until his departure in 2009, and asked why he thought he would now. He said when he was returned from [Country 2] he did not have any trouble, but he could feel discrimination towards those repatriated and their life was not very easy. He confirmed that he had not ever been arrested by the authorities.
The applicant’s friend [gave] evidence at the hearing. She said that she was a good friend of the applicant’s sister and had heard about the applicant from his sister, and she said that she found his story very touching, she had been through this herself. She said that she had fled from Vietnam to [Country 2], and then had come to Australia. She said the applicant’s story of his mother being harmed in detention, and eventually dying because of this abuse, had been told to her by the applicant sister. She said that the applicant’s life is very sad, and he may have worries and concerns about what the government may do to him on return, he had lost his family there and he might be a lost person. She said that he may find it hard to move on, and that he is very comfortable and has started a new life here. She said when he returns the authorities might not do anything but that he could still be affected. She noted that inconsistencies about his education may be because he is nervous.
I then queried whether the applicant had any debts in Vietnam. He said when he was filling in the application to visit Australia he needed to give away money, because anything you want you have to pay money. He said he did borrow some money with a high interest rate. I asked if he had had any problems because of that, and he said he thought that would be the trouble for him as he was away for 10 years, so there will be some trouble. He said when he comes back the police will look for him. I asked why the police would look for him. He said the law in Vietnam is totally different from other countries. I asked how much he had borrowed and he said about [amount] million Dong ([amount] AUD[1]). He said he had borrowed this for his small business or for paying those who helped him complete his application and get the Visa to Australia. He said he had borrowed from rich people who charge high interest rates, or loan sharks. I asked what the name or names were and he said he had stopped contacting them and he had been in Australia so long he did not contact them. I asked again what name or names and he said [Mr A]. He said he had borrowed this about 13 years ago when he had started his own small business. I asked if he had paid back any of this loan, and he said he had not paid any of this loan because he needed the money to get the Visa, but when in Australia he could not work and earn money to pay it back.
[1] Xe.com
I asked if anything had happened to him in the three years he had been living in Vietnam and had not paid back the loan and he said they were looking for him to demand payment, but he kept hiding from one place to another. I noted that in his application he had only listed one address, in Da Nang. He said that he had borrowed the money from [Town 1] and he resided in Da Nang in order to stay away from the lender. I noted that if nothing had happened to him in three years, I might think that nothing would happen to him if he went back now. He said the situation was not very easy, he lost money on his small business and could not pay the money back, so he had to move to Da Nang to buy time to get away from those lending the money. He said if he went back to Vietnam those people he borrowed money from definitely will look for him and would cause trouble.
I asked the applicant why he had not told me about this claim before, when I had asked what he thought might happen when he went back to Vietnam. He said this was because he had been nervous, and he did not have it in his mind. I queried this, noting that I had asked him lots of questions about what had happened and what he feared and he had not mentioned it at all until I had asked about debts in Vietnam later in the hearing. He said he was sorry about that, he had not fully understood my questions.
I put to the applicant that even if I accepted that he owed money I might find that he could return to Vietnam and get a job. He said it might be difficult. I noted that he had worked in a variety of industries in Vietnam, and had worked in Australia. He said in Australia he had only done small jobs from friends. I put to the applicant information in the DFAT report:
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 USD2,100 by the end of 2015.[2]
[2] DFAT Country Information Report Vietnam, 21 June 2017.

The applicant said that as far as he knew from his time working in Vietnam before, the income in the industries he had worked in was really low, maybe not enough to buy food, let alone money for medical treatment, or paying back the debt. I noted that in the past he had been able to support himself and his family. He said this was true but his wife had contributed, and they were still low class people, in Australia he could see a big difference.
I queried the applicant’s written claim that he had been harmed in Vietnam because he was verbally threatened by his creditor who said they would hurt him. I noted I had a concern because he had not claimed this at the hearing, despite me asking him a number of times if he had been harmed or threatened. He said that he had not mentioned it because he was nervous. I explained that nervousness might explain inconsistencies in his education dates, but I was not sure it explained not telling me about the loan or the threats before I had asked him about them. He said he was really nervous and in fear of being deported.
When asked if there was anything else you wish to say he said that his father had been a soldier for the South Vietnamese army and had forced himself on his mother.
I explained to the applicant a further concern was his delay in applying for protection. I noted that there had been a six-year delay between him coming to Australia and him seeking protection, for most of this he had been unlawful, and would have been liable to be removed if he had been located. He said when he was unlawful he was in fear that if he applied for anything or contacted the Department he would be deported immediately. I noted that he had a brother and sister in Australia who had come to Australia on visas and would have some familiarity with Australia’s visa framework and could have given him advice. He said he had been residing in Queensland and had not had any information from his brother or sister.
I noted that I had concerns about whether he had a loan in Vietnam as he had only told me late in the process and when I had prompted him. He said again that he had been nervous. I noted that even if I accepted that he did have a loan I might think nothing would happen to him because nothing appeared to have happened to him in the three years he had been in Vietnam, and it had now been 13 years since the loan was taken out. He responded that he was hiding from them when he was in Vietnam. He said he knew it was his obligation to pay back his debt but he needed to find a source of income. I noted that it did not appear he had been in hiding because from his application form he had resided at one address in Da Nang. He said when they are filling out the form they only put one address, as they did not know the temporary address was important to be included. He said they kept moving from [Town 1] to Da Nang and back. I noted that previously he had said he had taken the loan in [Town 1] and then resided in Da Nang.
I noted to the applicant that I may accept that he had fled to [Country 2], and been repatriated to Vietnam, but I may consider that he would not be harmed for any reason connected to this, because he appeared to have been able to live in Vietnam from 1992 until 2009 without any difficulties connected to this. He said that when he was repatriated to Vietnam, the UN had been a guarantor for their safe return.
I asked if there is anything else he wished to say and he said there was not.
Consideration
I have carefully considered the applicant’s claims. I have significant concerns, that I shared with the applicant, about aspects of his claims.
Despite him not including this information in his protection application, I accept on his detailed evidence and that of his witness that the applicant’s mother was detained around 1987 on suspicion of attempting to depart Vietnam unlawfully, that during this detention she was beaten and mistreated, leading to serious health issues, which may have contributed to her death. I accept that the applicant and his mother fled to [Country 2] unlawfully in 1988. I accept that they were not selected for settlement in a third country and were repatriated to Vietnam in 1992 with the guarantee of the UN. I accept that the applicant may have suffered some discrimination in employment because of their travel to [Country 2] and repatriation. I accept that his father may have been a soldier for the South Vietnamese Army.
I find however that the applicant was able to gain employment in the [industries] and was able to support his family.
I find, on his evidence at the hearing, that apart from some employment related discrimination, the applicant suffered no adverse effects, or mistreatment or harm from the authorities or anyone else from the detention of his mother, his departure from Vietnam to [Country 2] and repatriation to Vietnam some four years later or the fact his father was a soldier for the South Vietnamese Army.
I have carefully considered the claim that he borrowed money for his small business and the Visa to Australia that he has not repaid, and his claim that he was in hiding from his creditors, that they threatened him, and that he fears harm on this basis and return.
The applicant made this claim in his written application. That application was un-detailed. As the delegate pointed out the applicant provided no information about how much money he borrowed or why he would be harmed by creditors even though he claimed he borrowed money from relatives. A more fundamental concern is that the applicant did not mention this aspect of his claims until I specifically asked if he had debts in Vietnam. The applicant claims that this was because of nervousness. I do not accept this explanation for him failing to mention this claim when I specifically asked him on a number of occasions what had happened in Vietnam and what he thought would happen to him on return. The fact that the applicant did not mention the loan, the claimed threat or threats, his claim that he had been in hiding, or his claimed fear of what may happen because of this debt all leads me to disbelieve this aspect of his claim.
Further leading me to doubt this aspect of his claim, I found his evidence about why he needed the loan, who the loan was from, whether he had had any difficulties because of the loan in the three years he remained in Vietnam to be vague and implausible. He did not clearly explain the purpose of the loan, nor, I find, was he able to explain his claim that he was in hiding for three years but that he had not talked about this earlier in the hearing and this did not appear reflected in the addresses in his protection application. I do not accept that if him being in hiding was a part of his claim that he would not consider it relevant to place all of his residences in Vietnam in his application form.
A further concern with this aspect of his claim is the issue of delay. If the applicant had genuinely been in hiding for three years and had been threatened with harm by his creditors, I consider that he would have been highly motivated to seek a more durable means of staying in Australia earlier than he did. I do not accept that he could not have sought advice from his brother and sister who came to Australia and would be familiar with the migration system in Australia and the rule of law in Australia and would have been able to explain to the applicant that he could seek some migration outcome rather than remaining unlawfully in Australia at risk of location and removal to Vietnam at any time, regardless of whether he was residing in Queensland or Victoria,. The fact that the applicant did not do these things and did not apply for protection for some six years, remaining unlawful for most of this time, leads me to have further concerns with whether the applicant fears return to Vietnam or is at a real risk of significant harm on return.
When I consider these concerns, and not accepting the applicant’s explanations as lacking in plausibility, I have come to the view that the applicant has not been truthful about these aspects of his claims, and I do not accept that these things have occurred. I find that the applicant did not borrow money from relatives, from [Mr A], rich people who charge high interest rates, loan sharks or from anyone else in Vietnam. I do not accept that he has received verbal threats from any of these people related to a loan or for any other reason. I do not accept that he sought help from the authorities or anyone else in relation to the claimed loan or the claimed threats or for any other reason. I do not accept that he was in hiding from any of these people in Vietnam at any time. I do not accept that the police will look for him for any reason connected to these claims or for any other reason.
Whilst I accept that the applicant has a poor view of the Vietnamese authorities and political system, I do not accept that he has suffered any direct harm for any reason connected to this. As above I find that despite some employment related discrimination, he has been able to find work, marry, and support a family, and apart from some discrimination around employment (which I have accepted but which has not led to him not being able to work or support himself or his family), the applicant has not claimed and I do not accept he has suffered any other harassment, discrimination or other harm.
The applicant claims to have been living in harsh conditions, in mental distress and fear, had lived in hardship because of the bad economy and if returned he would live in harsh conditions and suffer discrimination for [Country 1] women. I understand these claims to address his economic past and the economic situation were he to return. The country information cited above indicates that the economic situation in Vietnam has improved overall since the applicant departed in 2009. Whilst I accept this improvement may be patchy, I consider that there is very good prospects that the applicant could be employed on return to Vietnam, given he worked there in a variety of industries, and has had some work, albeit sporadic, in Australia, and I find he would be able to support himself on return to Vietnam.
I have considered whether the applicant has lived in mental distress and fear. I accept that the applicant’s family situation has weighed on him heavily. However, as above, I have found that he has been employed, married and had a family which he was able to support in Vietnam. When questioned about his life in Vietnam he gave evidence that it was not easy but that he had not suffered harm or discrimination other than some employment related discrimination. As above, I have rejected the claim that he borrowed money, was threatened and lived in hiding, and I do not accept these claims, which I have rejected, led to him living in mental distress and fear. He has not provided any other evidence to establish that he lived in mental distress and I do not accept that he lived in mental distress and fear.
Does the applicant have a well-founded fear of persecution if he returns to Vietnam?
I have carefully considered what I accept of the applicant’s claims. If returned, I find he would be returning to Da Nang. I find that he would be returned as the son of someone who was arrested and detained in 1987 on suspicion of unlawful departure, who was beaten and mistreated during this detention, and as the son of a South Vietnamese army soldier, and as someone who fled unlawfully to [Country 2] in 1988 and was repatriated in 1992.
However, I have found that the applicant has been employed in a variety of industries in Vietnam in the past, despite suffering some employment related discrimination. I have found that he has not suffered any other discrimination or mistreatment from the authorities or anyone else for reasons of his mother’s detention, for reasons of his unlawful departure to [Country 2], his repatriation to Vietnam or his father’s being a former south Vietnamese army soldier. The applicant was very clear that he had not suffered any threats, discrimination or harm for any reason on return to Vietnam in 1992. He was very clear he had not had any difficulties with the authorities. The applicant conceded that he had departed lawfully from Vietnam to Australia in 2009. I do not accept that his lawful departure from Vietnam in 2009, nor the lengthy period of his stay in Australia will lead to a risk of harm nor increase the risk of him being harmed because of any of the other characteristics of his that I have accepted.
I find that the applicant could return to Da Nang, find employment and be able to support himself. Even accepting that he may continue to suffer some employment related discrimination because of his family history and his departure and return from [Country 2], I do not accept that this will lead to him being unable to find work, support himself, or subsist.
On the basis of this reasoning, taking into account what I have accepted of the applicant’s claims, I find that there is no real chance, that is one that is not remote, that the applicant will be persecuted for any reason by the authorities, police, society, relatives, [Mr A], rich people who charge high interest rates, loan sharks or from anyone else on his return to Vietnam, now or in the reasonably foreseeable future.
Are there substantial grounds to believe that the applicant will suffer significant harm if returned to Vietnam?
I asked if there was any other basis on which he thought he may be harmed on return to Vietnam. He did not raise any other claims or issues.
As above, I have found that the applicant would be returning to Da Nang. I find that he would be returned as the son of someone who was arrested and detained in 1987 on suspicion of unlawful departure, who was beaten and mistreated during this detention, and as the son of a South Vietnamese army soldier, and as someone who fled unlawfully to [Country 2] in 1988 and was repatriated in 1992.
I have found that the applicant has been employed in a variety of industries in Vietnam in the past, despite suffering some employment related discrimination. I have found that he has not suffered any other discrimination or mistreatment from the authorities or anyone else for reasons of his mother’s detention, for reasons of his unlawful departure to [Country 2], his repatriation to Vietnam or his father’s being a former south Vietnamese army soldier. The applicant was very clear that he had not suffered any threats, discrimination or harm for any reason on return to Vietnam in 1992. He was very clear he had not had any difficulties with the authorities. The applicant conceded that he had departed lawfully from Vietnam to Australia in 2009. I do not accept that his lawful departure from Vietnam in 2009, nor the lengthy period of his stay in Australia will lead to a risk of harm nor increase the risk of him being harmed because of any of the other characteristics of his that I have accepted.
I find that the applicant could return to Da Nang, find employment and be able to support himself. Even accepting that he may continue to suffer some employment related discrimination because of his family history and his departure and return from [Country 2], I do not accept that this will lead to him being unable to find work, support himself, or subsist. I do not accept that this discrimination, were he to suffer it in the future, constitutes such serious conduct that it is significant harm.
I find therefore that there is no real risk of the applicant suffering significant harm as a necessary and foreseeable consequence of him being returned from Australia to his receiving country, Vietnam, in the reasonably foreseeable future.
Conclusions
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6510

12 September 2019

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Immigration

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