1701702 (Refugee)

[2019] AATA 90

1701702 (Refugee) [2019] AATA 90 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701702

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:16 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made 16 January 2019 at 10.51am

CATCHWORDS
REFUGEE – protection visa – Vietnam – economic disadvantage – fears harm from gangs – no evidence provided – credibility – delay in apply for protection – plan to work in Australia – no genuine fear of being persecuted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 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 5 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CRITERIA FOR A PROTECTION VISA

5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7.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.

8.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.

9.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

10.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

11.The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Vietnam, there is a real risk that she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12.The applicant first arrived in Australia on 8 September 2013 on a student visa (subclass 573) and has not departed since. The applicant applied for a permanent protection visa (subclass 866) on 10 April 2015 and an associated bridging visa was granted.

Country of nationality

13.A certified copy of the applicants Socialist Republic of Vietnam passport number [deleted] issued in [Vietnam] on [date] 2013 and expiring on [date] 2023 is on the departmental file ([number deleted]) (‘the department file’).[3] The passport shows that the applicant was born on [date] in Nghe An, Vietnam. The delegate’s decision records that the applicant provided facial image and fingerprints to the department and that the delegate had utilised ICSE and TRIM systems to check her identity. The delegate noted that the information on all the systems supported the applicants claimed identity, nationality and citizenship. As such the delegate was satisfied that she had provided sufficient evidence in support of her identity and accepted that the applicant was born in Vietnam and her country of citizenship is Vietnam. 

[3] [Department file number deleted]f 51-52

14.The Tribunal is therefore satisfied and finds that the applicant is a Vietnamese national. Accordingly, the protection claims will be assessed against Vietnam as the country of reference and 'receiving country' respectively. There is no evidence to suggest that the applicant has the right to enter and reside, whether temporarily or permanently, in any other country. 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 and therefore finds that the applicant is not excluded from Australia's protection obligations under s36(3).

CONSIDERATION OF CLAIMS AND EVIDENCE

Refugee assessment

15.The applicant set out her initial protection claims in her visa application as follows:

Why did you leave that country?

‘I left Vietnam because I was constantly threatened, I feared for my life.’

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 killed.’

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’I was constantly threatened.”

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

‘No.’

16.The applicant did not provide the Tribunal with any written submissions or any other documentation in support of her claim. However, she did provided oral evidence to the Tribunal about her background and specific protection claims. They are summarised as follows:

(a)The applicant was born in Nghe An province, Vietnam on [date]. Her family live in [Yenthanh] District, Nghe An Province, Vietnam. The applicant’s evidence was that her mother [has] passed away but that her father [still] lives in Yenthanh District, Nghe An Province. The applicant said that she has [siblings] both reside in Vietnam.  

(b)The applicant completed school in 2007 having attended [Primary] School and [High] School in her local village.  She then attended [a university] in Ho Chi Minh City where she completed a [degree] in 2012. The Tribunal accepts the applicant’s evidence in relation to her family and education.  

(c)The applicant arrived in Australia on [date] September 2013 on a student visa (subclass 573). The applicant was enrolled in a [course] at [University]. The applicant’s student visa was cancelled in 2015. Her evidence was that she did not finish the course due to the fact that her mother was sick and as a result she lacked the financial support from her family to continue her studies.

(d)In response to the Tribunal asking her why she wanted a protection visa the applicant said that had applied for the visa because she wanted to work. She said that her mother had been very sick before passing away and that she had no support for her family.

(e)She said that at the time of arriving in Australia she had not been aware that she could make a protection visa. As a result she had applied for a student visa to be able to come to Australia.

17.The Tribunal asked the applicant, given she said her reason for coming to Australia was to work, if she feared being harmed if she returned to Vietnam. The applicant confirmed that the reason for coming to Australia was to work due to the fact that she had no money and no support from her family and that she did not fear being harmed if she returned to Vietnam and in particular she did not fear any harm by gangs if she returned to Vietnam. 

Country Information.

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

Economic Overview[4]

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

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

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

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

Employment[5]

[5] OpCit @ p.8

2.15 The 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.

2.16 Agriculture 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.

2.17 Vietnam 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[6]

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

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

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

[6] OpCit @ p.9

18.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:[7]

[7] OpCit @ p.22

Police

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

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

Judiciary[8]

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.

[8]    OpCit @ p.23

19.In relation to the gangs operating in Vietnam the Thanh Nien News[9] reported that police throughout Vietnam say they are cracking down on gangs of increasingly bold criminals who appear undeterred by the nation’s drug laws. It reports that the city police spent the previous week rounding up four members of another gang smuggling syndicate that attempted to smuggle three kilograms of meth from Cat Bi airport to Ho Chi Minh City on 7 August 2014. On 15 August 2014 it’s reported that officers cut power to the whole neighborhood in Kien An District to arrest drug Kingpin Vu Dinh Chien. The report notes that Vietnam has some of the toughest drug laws.

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

20.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.[10] 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.

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

22.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. 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[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]

[11] s.5AAA Migration Act 1958.

[12]  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.)

23.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] 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.

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

24.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.[14] 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.

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

25.The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the applicant’s evidence to the Tribunal was that she did not fear any harm from gangs in Vietnam. Rather she stated that as a result of having no money and no support for her family she travelled to Australia to work. As a result the applicant did not provide any evidence in support of her her claim as detailed in her protection visa application.

Applicants delay.

26.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.[15] In this case the applicant arrived in Australia on [date] September 2013 on a student visa but did not make any application for a protection visa until 10 April 2015. That is, after her cancelation of her student visa. The applicant’s evidence was that she did not make any application for a protection visa at the time of her arriving in Australia because she had not been aware that she could make such an application. 

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

27.However, the Tribunal would have expected that, if she had a genuine fear of persecution upon her return to Vietnam, in circumstances were she is an educated person, she would have made application for a protection visa soon after her arrival in Australia. Instead, the applicant remained in Australia on her student visa for approximately a year and half before make her application for protection.  As a result, the Tribunal does not accept the applicant’s evidence that she was not aware that she could make such an application until in or about April 2015. Accordingly, the applicant’s delay in making her application for a protection visa indicates to the Tribunal that she does not hold a genuine fear of being persecuted or significantly harmed upon her return to Vietnam.

28.Therefore, based on the applicants own evidence that she did not any harm from gangs in Vietnam, her delay in making her protection visa application and the generally lack of any creditable evidence to support her claim as set out in her protection application means that the Tribunal does not accept the applicants claim as creditable or plausible. As a result, the Tribunal finds that the applicant does not hold a fear of being persecuted in the event that she is returned to Vietnam. Accordingly it finds that there is no real chance that the applicant will be seriously harmed by gang members in the event that she is returned to Vietnam.

29.In any event, having considered the available country information, the Tribunal considers that if the applicant had a subjective fear of being harmed by gang members upon her return to Vietnam as claimed (which it specially finds she does not) then it considers that the applicant has access to effective protection measures as a victim of a gang 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’[16] and that they have exercised a crackdown on gang operations.[17] The applicant did not provide any detail of the gang or the circumstances in which the threats as described in her claim occurred.  While the Tribunal accepts that gangs are widespread in Vietnam, based on the available country information, it does not accept that their activities are so extensive that the applicant would denied effective protection measures. Based on the country information, the Tribunal finds that that the State is able and willing[18] to provide effective protection measures to the applicant[19]. Based on the available country information the tribunal finds that finds at that the applicant is able to access the available protection measures and that such protection is durable. The Tribunal finds that the Vietnam has an appropriate criminal law that provides effective protection to the applicant. Based on the country information it has a police force that provides reasonably effective protection and a judicial system that is impartial in the determination of criminal cases. Therefore, it finds that by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of a gang.

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

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

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

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

30.However, the applicants evidence to the Tribunal that she had applied for the protection visa because she wanted to be able to work and support herself. Although not specifically raised by the applicant, on the available evidence it is reasonable for the applicant to have claimed that she fears significant economic hardship that threatens her ability to subsist in the event that she returns to Vietnam.

31.As such, the Tribunal has considered if there is any real chance that the applicant will suffer serious harm arising from her economic situation if she was to return to Vietnam in the foreseeable future. Based on the applicants own evidence, the Tribunal accepts that the applicant was motivated to come to Australia to find employment to look herself and her family but does not accept that there is a real chance that she will be seriously harmed in the event she is returned to Vietnam.  The applicant is youthful, fit, motivated and able to locate work in Australia. She is tertiary educated indicating that she is well qualified to find employment anywhere in Vietnam.

32.While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work upon her return to Vietnam, it does not accept she will not be able to access paid employment given her overall motivation and qualifications. The Tribunal acknowledges the applicant fears that she has the burden of generating extra income for her family and that she has a genuine personally held fear regarding the cost of living being too high and the remuneration of work being too low if she were to return to Vietnam. However, the Tribunal has placed considerable weight on the country information that describes Vietnam as an ‘economic success’. In this regard, the Tribunal notes the falling poverty rates in Vietnam. For these reasons, the prospects of finding work in Vietnam, based on the applicant’s circumstances, does not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant or her family will experience significant economic hardship or deny them capacity to earn livelihoods that threatens the person’s capacity to subsist or that the applicant and her family will be denied access to basic services, where the denial threatens the person’s capacity to subsist.[20] In this case the Tribunal has not treated the instances of serious harm under section 5J(5) of the Act as definitive.

[20] The instances of serious harm as referred to in section 5J(5) of the Act are not s case the instances of harm

33.Accordingly, the harm to the applicant does not amount to serious harm. As such the Tribunal finds that the applicant does not have a real chance of serious harm arising from her economic circumstances for reasons mentioned in s.5J(1)(a) or any other claimed reasons, if she was to return to Vietnam from Australia, now or in the reasonably foreseeable future.

34.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

35.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'. ^[21]

[21]    MIAC v SZQRB [2013] FCAFC 33,

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

37.The Tribunal has considered if there are any reasons to believe, the applicant will face a real risk of significant harm arising from her economic circumstances as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by s.5J(4)(b) in the context of s.36(2)(a).[22] The Tribunal has already made a finding that the applicant 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 herself and her family, it does not accept the applicant will not be able to access paid employment anywhere in Vietnam. Given her qualifications, relative youth and motivation to work as a necessary and foreseeable consequence of being removed from Australia and returned to Vietnam there is not a real risk she will suffer significant harm as required by s.36(2A) of the Act.

[22]    In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

38.Furthermore, the Tribunal finds there is no intention on the part of the Vietnamese Government in its role of managing the economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia for Vietnam, based on the applicant’s economic circumstances will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.

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

Conclusions

40.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).

41.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).

42.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

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

Jason Pennell
Member