1701697 (Refugee)

[2019] AATA 1227

1701697 (Refugee) [2019] AATA 1227 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701697

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:24 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 January 2019 at 3.54pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – member of particular social group – borrowed money from loan sharks – threats by same loan sharks – financial undertaking letter – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 5L, 5K-LA, 36, 65, 424AA, 499
Migration Regulations 1994 Schedule 2

CASES

Applicant S v MIMA [2004] HCS 25
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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 23 January 2017 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 10 April 2015. 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 27 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from 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

1. 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.

2. 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.

3. 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.[1] 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.[2]

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

   [2] s.5H(1)(b) of the Act

4. 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.

5. 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.

6. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]

   [3] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   [4]     Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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

1. 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

1. The applicant arrived in Australia [in] December 2012 on a as the holder of a [temporary] visa. On 10 April 2015 the applicant applied for a Protection (Class XA) visa and an associated bridging visa was granted.

Country of Reference

1. In his application the applicant claims to be a citizen of Vietnam.. The departmental file [file deleted] contains a copy of the applicant’s passport from the Socialist Republic of Vietnam which states that he was born on [date] in Nghe An, 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

1. The applicant’s written claim for protection are contained in his 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 was constantly been threatened.’

   Have you experienced harm in that country?

   ‘No.’

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

   ‘I fear for my life, I fear I will be harmed.’

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

   ‘A group of gang.’

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

   ‘I was constantly receiving threats.’

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

   ‘No.’

The applicant’s evidence

1. The applicant’s evidence to the Tribunal was that he was born on [date] in Nghe An Province, Vietnam and is a citizen of Vietnam. His parents are still alive and continue to live in Nghe An Province. The applicant’s evidence was that his father worked [and] his mother is engaged in home duties. The applicant said that he has one [sibling] who continues to live in Vietnam. The applicant is not married.

2. The applicant attended [a school] in Nghe An Province, Vietnam and completed high school in [year]. He then attended [a] University in [Vietnam] where he completed a [qualification] in [year].[5]  The applicant then commenced work as an [Occupation 1] with [Company 1].

   [5] Applicants letter to Australian Consulate General dated 20 November 2012.

3. The applicant’s letter to the Australian Consulate dated 20 November 2012, states that he wanted to travel to Australia to continue his studies. The applicant was accepted to [a] University in [Australia] to study [Course 1]. The applicants plan was to initially complete an English course before commencing his [Course 1] [in] July 2013.

4. The applicant evidence to the tribunal was that he came to Australia because a friend had told him that he could earn more money than in Vietnam. He said that a ‘friend’, [Mr A], was the owner of several [businesses] in and around [City 1], Vietnam and that he had agreed to lend the applicant approximately [amount] Dong (approximately AUD[amount]) to travel and study in Australia. The applicant was not able to inform the Tribunal where [Mr A] lived or the location of the [business] from which he borrowed the money. The applicant said that [Mr A] charged interest at a rate of [amount] Dong per day for every [amount] Dong borrowed. That is [amount] Dong per day (approximately AUD[amount] per day). The applicant was not able to provide any documentation evidencing the loan. Such documentation may include a loan agreement or bank statements evidencing the receipt of the principal sum or any repayments.

5. The applicant’s evidence was that when he arrived in Australia he was not able to pay the interest on the loan without finding work. He said that he attended the English course for two days but was not happy with the standard of tuition and as a result stopped attending the classes. The applicant did not enrol in an alternative English course nor did he commence [Course 1] as planned. 

6. The applicant’s evidence was that from 2012 to 2015 he worked [in Occupation 3] from which he was able to earn enough money to pay for his rent and food. The applicant says that he has made some payments to [Mr A] but was not able to say precisely when the payments were made. In addition he was not able to provide the Tribunal with documentary evidence of the payments having being made.

7. The applicant claims that he fears returning to Vietnam due to the fact that [Mr A] will demand repayment of the loan and cause him harm. He said that [Mr A’s] [business] was part of a broad chain of [business] that operated as loan sharks throughout Vietnam. His evidence was that in the business of lending money as a ‘loan shark’ with members of the organisation recovering money for borrowers and/or enforcing the terms of loans. As a result his evidence was that between 2012 and 2015 members of the [Mr A] organisation visited the applicant’s parents demanding repayment of the loan. He said that they initially visited his parents’ house once a week but less after 2015. The applicant’s evidence was that his parents were not harmed by members of the organisation demanding repayment of the loan. However, the applicant says that on or about New Year’s Day in 2013 the applicant spoke to [Mr A] on the telephone during which he threatened to kill the applicant if he did not pay the loan. He said that if he returns to Vietnam he fears that he will be killed by organisation members and even with the passage of time he will be harmed in the event that he returns to Vietnam. 

8. The applicant evidence as that he was not able to relocate to another part of Vietnam as [Mr A] had will easily find him as there are many branches throughout the country.

COUNTRY INFORMATION

24.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.

2.10Vietnam 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.

Employment[7]

[7] OpCit @ p.8

2.15The law prohibits discrimination with respect to employment and occupation based on sex, race, disability, social class, marital status, religion, and HIV/AIDS-positive status. The law promotes and encourages the employment of persons with disabilities; however, in practice social and attitudinal barriers exist to varying degrees.

2.16Agriculture employs around 44 per cent of all workers in Vietnam, although this share has been declining steadily and is down from around 70 per cent in 1996. The share of employment in the industrial sector, including manufacturing, has approximately doubled since 1996, to around 21 per cent.

2.17Vietnam introduced new minimum wage standards effective 1 January 2017. There are four regional minimum wages currently ranging from VND2.58 million to VND3.76 million (AUD153 – 224) per month. It is unclear at time of writing how widely they have been implemented. Fines exist for labour violations, but are not always enforced due to shortage of training inspectors and low funding. The International Labour Organization (ILO) estimates that around 82 per cent of total employment is informal (or unprotected) labour. Vietnam does not have independent labour unions.

Security Situation[8]

2.28Security 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.

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

2.30Protest 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).

[8] OpCit @ p.9

1. 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:[9]

   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[10]

   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.22

   [10]   OpCit @ p.23

2. 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 type="1">

3. When 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.

1. 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] December 2012 but did not make any application for a protection visa until 10 April 2015. 10 April 2015 In this case the applicant arrived in Australia [in] April 2008 on a .

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

2. 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 having entered Australia on a [temporary] visa , it does not accept that the applicant’s evidence that he was not aware he could make an application for protection.

3. Rather, the applicant has remained in Australia for a period of approximately two and half years 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.

4. Applicant’s claims as a refugee

   Membership of a Particular Social Group.

5. The Act[13] defines a particular social group as:

   [13] Section 5L Migration Act 1958

   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.

1. In Applicant S v MIMA [2004] HCS 25 Gleeson CJ, Gummow and Kirby JJ[14] 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.’

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

2. In this case the applicant submits that he is a member of a particular social group as defined by its shared characteristic, experience and commonality,[15] being people who owe money to a gang in Vietnam. The applicant’s evidence was that he had been threatened and harassed by members of [Mr A] organisation for the payment of interest and principal repayments under the terms of the loan agreement. The Tribunal has some difficulty in accepting the applicant as a member of a particular social group. The applicant entered into a commercial arrangement with [Mr A] and his organisation. As such the Tribunal is not convinced that the fact that he has been threatened by [Mr A], and/or members of his organisation for repayment of the loan, that it constitutes a shared cognisable characteristic that is an innate and unchangeable characteristic so fundamental to the identity of the members of the group that it separates them from 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. 

   [15] S.5L(b) of the Act

3. Therefore, having regard to the section 5L of the Act and 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 loan sharks in Vietnam.’  

Fear is well-founded.

1. The concept of ‘well-founded fear of persecution’ is defined in s.5J of the Act. It provides that a 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 above; and

   (c)the real chance of persecution relates to all areas of a receiving country.

2. 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.[16] That is a fear of persecution exists if there is a real chance the applicant will suffer serious harm[17] on return to their country of origin.[18] 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.

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

   [17] S.5J(5) of the Act

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

3. 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.[19]

   [19] 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.)

4. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] 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.

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

5. 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.[21] 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.

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

6. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the applicant did not provide the Tribunal with any plausible, emotionally compelling or persuasive answers its questions to his claim. Rather the applicant’s evidence was vague and lacking in any specific detail. For example he was not able to provide precise details as to the time and place he borrowed the money or the location of his friend, [Mr A].  In addition, he was not able to provide any independent or documentary evidence to support his evidence that he had borrowed the money and received threats from [Mr A] as claimed.

Economic claim

1. Although not specifically put by the applicant during the course of the hearing the Tribunal has considered a potential claim by the applicant for economic reasons. The applicant stated to the Tribunal that a friend had told him that he could earn more money in Australia than in Vietnam. It may be open to the applicant to claim that he holds a well-founded fear of persecution by reason of the fact that he would suffer serious harm by significant economic hardship that would deny him his capacity to subsist.  However, a claim by the applicant that he could not earn enough money in Vietnam, if he was to return in the foreseeable future, does not appear to arise out of any of the reasons mentioned in s.5J(1)(a).  The applicant’s evidence was that prior to traveling to Australia he was working as an [Occupation 1] with a [company] known as [Company 1].

2. Therefore, while the Tribunal acknowledges the applicant may face difficulties and challenges arising from finding work in the event that he returns to Vietnam, it does not accept the applicant will not be able to access paid employment in the foreseeable future particularly given his qualifications, work experience and overall motivation. The Tribunal notes that while the applicant does not have the burden of generating an income for his family, he does have a genuine personally held fear regarding the cost of living being too high and the remuneration too low if he was to return to Vietnam. However, given his qualification and work experience the prospects of finding work in Vietnam does not amount to him facing serious harm, in the sense that he will experience significant economic hardship or be denied the capacity to earn a livelihood that threatens his capacity to subsist or denies access to basic services.

The gang claim

1. Despite the fact that the applicant’s claims detailed in his protection visa application are expressed in the broadest and briefest of terms, they appear to be inconsistent. While the   applicant states that the reason for him leaving the Vietnam was that he was ‘constantly threatened’ his response to being asked by the Tribunal if he was harmed in Vietnam was ‘no.

2. Nevertheless, the applicant claims that he borrowed the amount of VND[amount] from a [business] known [Mr A] for the purposes of traveling to and studying in Australia. He said that the money was to be used for the purposes of funding living and tuition fees in Australia.

3. However, his application for a student visa contains a Financial Undertaking Letter from the applicant’s father, [Mr B] to the Australian Consulate General in Vietnam dated [November] 2012.[22] The applicant’s father confirms that the applicant is traveling to Australia to study English and [Course 1] at [a] University. However, contrary to the applicant’s evidence it states that that the applicant’s father owns and operated a [business] The applicant’s father commits to supporting the applicant while he studying in Australia and states that an amount of VND [amount] had been transferred to the applicant’s bank account to help support him in Australia.  Based on the contents of the letter, there appears to be no reason to have borrowed the money from [Mr A] as claimed due to the fact that the applicant was to be supported in Australia by his father.       

   [22] Financial Undertaking Letter by [Mr B] to Australian Consulate General in Vietnam dated [November] 2012.

4. The Tribunal put to the applicant the contents of the Financial Undertaking Letter pursuant to s.424AA of the Act. In response, the applicant said that the contents of the letter were not correct as his agent had ‘arranged everything.’ The applicant did not provide any other documentation or evidence to suggest that the agent had arranged all the documentation for the purposes of him obtaining his student visa. In circumstances where the contents of the Financial Undertaking Letter have been relied upon by the applicant for the purposes of being granted a student visa, the Tribunal accepts the contents Letter and finds that his father did commit to supporting the applicant while he was studying in Australia. Accordingly, the Tribunal does not accept the applicant’s evidence that the agent ‘arranged everything’ for the purposes of obtaining his student visa.  The applicant did not provide any independent evidence in relation to his claim. In addition he was not able to provide the Tribunal with any documentary evidence of the loan including having received the money from [Mr A] as claimed or of having made any repayments to the loan. The applicant’s answers to the Tribunal’s questions in relation to the threat he had received from [Mr A] was vague and lacking in any detail. He did not provide the Tribunal with any specific date or time upon which he was threatened and did not provide any specific details relating [Mr A’s] organisation. The applicant gave no evidence of reports being made to police in relation to his claim concerning the members of [Mr A’s] organisation visiting his parents or to any threat made to him personally. 

5. Therefore, based on the applicant’s delay in making his application for protection visa, the fact that his evidence in relation to his claim was vague and lacking in any detail and that the Tribunal accepts the contents of the Financial Undertaking Letter, the Tribunal does not accept the applicant’s evidence that he borrowed money from [Mr A’s] organisation as claimed. In addition, the Tribunal finds that he and his family did not receive any threats from [Mr A] or by members of his organisation as claimed.   Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed by [Mr A] or members of his organisation in the event that he returns to Vietnam.

Effective Protection

1. In any event, having considered the available country information, the Tribunal considers that if the applicant had a subjective fear of being harmed by [Mr A] or members of his organisation 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 by operation of s.5J(2) of the Act. 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’[23] and that they have exercised a crackdown on gang operations.[24] The applicant disagreed with the country information and claimed that [Mr A’s] had operations throughout Vietnam, that they would be able to find and harm him and that any police protection would be ineffective.

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

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

2. In this case there was no independent evidence that [Mr A] organisation operated in a similar ways to a gang. Nevertheless, in circumstances where the applicant claims that he has been threatened to be killed based on the available country information, the Tribunal finds that the Vietnam has an appropriate criminal law that provides effective protection to the applicant. Accordingly, it finds that the State is able and willing[25] to provide effective protection measures to the applicant.[26] In addition, the Tribunal finds that the applicant is able to access the available protection measures and that protection provided by the State is durable. That is, Vietnam 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.

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

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

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

4. Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The Tribunal finds that the applicant does not have a well-founded for any of the reasons mentioned in s.5J(1) and therefore does not satisfy the criterion in s.36(2)(a).

Complementary Protection Criteria

1. 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'. ^[27]

   [27]    MIAC v SZQRB [2013] FCAFC 33,

2. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from his claim that he will be harmed by [Mr A] or members of his organisation. 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 fear of being harmed by [Mr A] and his organisation. .

3. In any event, having considered the available country information, the Tribunal considers that if is a real risk of significant harm from [Mr A] or members of his organisation upon his return to Vietnam as claimed (which it specially finds he does not) then, pursuant to s.36(2B)(b) of the Act, the Tribunal considers that the applicant could obtain from an authority in Vietnam, protection such that there would not be a real risk that he would suffer significant harm. The country information reports that the police are ‘generally effective at maintaining public order’[28] and that there has recently been a crackdown on gang operations.[29] Therefore, in circumstances where the applicant has claimed he has received threats that he will be killed, based on the available country information, the Tribunal is satisfied and finds that he is able to obtain for the Vietnam police protection such that there would be no real risk that he would suffer significant harm. In realtio to the applicatns potential economic claim the Tribunal has already made a finding that he has the capacity and inclination to find work anywhere in Vietnam. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself, it does not accept the applicant will not be able to access paid employment anywhere in Vietnam. The applicant is qualified and has worked as an [Occupation 1] in a [Company 1]. As such given his overall qualifications and experience, as a necessary and foreseeable consequence of being removed from Australia, the challenges that the applicant will face in finding future employment in Vietnam do not amount to significant harm as required by s36(2A). 

   [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

1. Accordingly the Tribunal finds that there is no real risk of the applicant being significantly harmed upon his returned to Vietnam.

Conclusions

1. 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).

2. 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).

3. 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

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

Jason Pennell
Member