1702817 (Refugee)

1702817 (Refugee) [2020] AATA 2109 (23 April 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1702817

COUNTRY OF REFERENCE: Vietnam

MEMBER: Tamara Hamilton-Noy

DATE: 23 April 2020

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the

applicant a protection visa.

Statement made on 23 April 2020 at 1:28pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – loveless marriage to member of loan shark group to help pay business debt – asked for divorce after debt paid – physical and sexual assault and mental abuse, and threats to family – travel to Australia on sponsored family visa – overstay and lengthy period of unlawful residence – credibility – inconsistent evidence on a number of issues – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 dependants.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 9 February 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 6 May 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
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

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Guidelines’ prepared by the Department of Home Affairs, and 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

The issue in this case is whether the applicant meets any of the alternative criteria in s.26(2)(a), (aa), (b) or (c), that is whether the applicant is 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 of such a person. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Vietnamese passport. She has at all times maintained that she is a citizen of Vietnam.
The Tribunal heard from the applicant during the hearing that she had resided in [Country] with her husband but that her visa had expired for [Country]. The applicant provided to the Tribunal a ‘Re-entry permit to [Country]’ which had been issued on [in] May 2005 and was valid until [May] 2008. Her representative submitted that she does not have permanent residency rights in [Country] as she holds a Vietnamese passport and was a temporary resident in [Country].¹ The Tribunal finds that the applicant does not have a right to enter and reside in [Country].
The Tribunal finds that the applicant is a Vietnamese citizen who has no right to enter and reside in another country. The Tribunal has assessed the applicant’s claims against Vietnam as her country of nationality.
Claims for protection
The applicant is a [Age]-year-old woman who was born in Saigon, Vietnam. She arrived in Australia [in] March 2007 on a sponsored family visitor visa which expired [in] July 2007. She lodged an application for protection on 6 May 2015.
In her written protection application, the applicant stated that she left Vietnam and travelled to [Country] as she had entered into a loveless marriage with [Mr A], a [Country] businessman working in Vietnam. She had agreed to marry him as it would help her and her family pay back a debt from bad business losses. The money used to pay the debt was borrowed from a loan shark group that [Mr A] was a part of. Once the principal and interest was paid off in October 2006, she asked [Mr A] for a divorce and it was around this time that he started abusing her physically and mentally on a daily basis. She feared for her life and her sister in Australia helped her come to Australia.
The applicant stated in her protection application that returning to [Country] would pose a risk to her wellbeing and the life of her younger sister who is married to a [Country person] and is living in [Country]. Returning to Vietnam would pose a greater risk to her life and the life of her family members, relatives and friends, because they would be forced to defend her life and wellbeing from [Mr A] and his associates. [Mr A] is bitter and revengeful because she has forced shame on him by leaving him.
1 Representative submissions 23 November 2019.
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As to whether she had experienced harm, the applicant in her protection application stated that while in [Country] in late 2006, she asked [Mr A] for a divorce and she was beaten and locked in his house for two months. She was often left without food for days as he travelled to Vietnam for work. After days of begging him, he allowed the applicant to stay at her sister’s in [Country] and at this time her sister helped her to apply for a tourist visa to Australia. This was granted on 26 February 2007. As she was preparing to visit her sister in Australia, [Mr A] somehow became aware she was travelling to Australia and he and his associates were looking for her. In mid-March 2007, [Mr A] and his associates harassed the applicant’s family through a local gangster. She didn’t want her family, relatives and friends to be harmed so she surrendered herself to [Mr A] and was beaten, raped and starved for 10 days. With the help of family, relatives and friends she was able to escape and travel to Australia.
The applicant stated in her protection application that moving to another part of [Country] was not an option for her as her whole life was dependent on [Mr A]. Relocating within Vietnam is impossible as her family’s home has been passed down by many generations before her and being without a home or job would turn her into a beggar.
The applicant’s representative provided a timeline of the applicant’s history and submitted on her behalf that the applicant fears harm as the Vietnamese authorities will be unwilling or unable to protect her. The representative submitted that the applicant should be considered to be a victim of human trafficking and that she fears beatings, rape, degrading and inhumane treatment, discrimination, persecution and possible murder; and that due to the corruption and abuse of power by local officials, the central government is unable or unwilling to eliminate risk to the applicant and, further, she suspects they may have colluded with her husband to force her into submission. The representative noted that the applicant’s sister and brother-in-law had expressed concerns for her psychological health, citing the traumatic experiences she was forced to endure and believing that her facial and mental changes are indicative of a psychological disorder, despite the applicant’s repeated denials.²
Tribunal hearing 1 October 2019
The Tribunal hearing was held on 1 October 2019. The applicant’s representative attended the hearing with her and the Tribunal was assisted at the hearing by a Vietnamese interpreter.
At the hearing the applicant told the Tribunal that she was born in Saigon, Vietnam. Her mother passed away in 1991 and her father is still living in Saigon, in the same house she grew up in. He worked in his own [business] while she was growing up. She has [a number of] brothers, [a number] of whom live with her father and one has passed away. She has a sister who has lived in Australia for 16 years and one in Vietnam.
The applicant stated that she attended primary school and high school in Saigon and completed Year 12. After Year 12 she helped her father in his [business], doing [business-related] work. She was married in 2004 and lived in [Country] for three years up to 2007, then returned to Vietnam. In [Country] she lived in a country town, with her husband and his mother. There were other houses scattered around but she didn’t meet anyone else living there.
The applicant stated that she had met her husband in 2003 when he was conducting business in Vietnam. He travelled there many times and it was a chance for them to get to know one another. His business was buying [Product 1] in Vietnam and taking it back
2 Representative submissions 1 October 2019.
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to [Country], and [Product 2] in Vietnam. There were no other aspects to his business. She did not do any work at all in [Country].

As to her husband’s current whereabouts, she stated that he is currently in [Country]. Their last contact was a long time ago, in 2007. They are separated but not divorced. The Tribunal asked whether the applicant’s family had had any contact with her husband since 2007 and she stated no, but if he travels to Vietnam he sometimes comes to her home. The last time was 2008 or 2009. As to when he last saw her father or brothers, she stated it was 2015 and he has had no contact with them since then.
The Tribunal asked about the marriage certificate provided by the applicant and she stated this was her only copy of her certificate and is a photocopy of the main copy she has at home. As to why she had brought her marriage certificate with her if only intending to stay for a short time on a family sponsor visa, she stated that she has just been sent this lately and didn’t have it when she first arrived in Australia.
The Tribunal asked whether the applicant’s husband is still living in the same house and she stated yes, she knows this because her adopted sister is living in [Country] and she has contact with her every year.
In response to further questions by the Tribunal, the applicant stated that she applied for the family sponsor visa from [Country] in March 2007. She had applied for a visa twice; the first time she was not successful so she applied again. She is unsure of the reasons for the first visa application being refused.
The applicant stated that she is living with her sister and brother-in-law in Australia. Her brother-in-law and sister are supporting her financially and she has worked [in a workplace]. The family sponsor visa was completed by her while in [Country] and she is unable to recall the information provided to the Department when the application was made. The Tribunal asked whether she had savings when she came to Australia and she said no, nothing at all. She had become unlawful as of [July] 2007 and as to why she had not put a protection application in at that time, she stated that she didn’t have enough knowledge about the law in Australia and she ‘suffered fearfulness’. The Tribunal asked why she didn’t explore options at that point if she was fearful of returning and she stated that she didn’t have the knowledge and didn’t know she could apply. As to why she had applied for protection in May 2015, she stated that at that time she had people around her talking about the government being able to provide a protection visa. As to who had typed the application she stated ‘friends’. She knows what was put in the application as she told them what to put in.
The Tribunal asked the applicant whether she had any problems with authorities while she was in Vietnam and she stated that the police had ‘invited her to attend’. At that time she had borrowed money from a black society gangster, as the family business went down and had losses and she tried to borrow an amount to cover this. She borrowed [Amount] dong; this amount was borrowed by her, not her father. As to why the amount was borrowed by her, she stated that her father and other brothers were involved directly in the [work] and she looked after the [materials]. The Tribunal noted she had said earlier that she had been involved in [works] and the applicant stated yes, and also [materials].
As to how she had got in touch with the gangsters, she stated that there was a group in the neighbourhood area who lend money. The repayment arrangements were 20% monthly. The business did not pick up and she could only afford to pay the interest. As to who the people were in the group that she had borrowed money from, she stated that there were two leaders in the group, a female [Ms B] and a man [Mr C]. As to what they had done to her, she stated ‘nothing to me yet’. As to whether she had repaid the amount borrowed, she

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stated that as of 2006 she had borrowed money from a friend and from her sister and repaid all the money owing. She has nothing owing to the black society group.

The Tribunal asked about the police invitation that the applicant stated she had received and she said it was because she delayed payments of interest and the police invited her to the station to talk, because people from the black society lodged a complaint with the police. The Tribunal asked how the black society could do that if they were not registered lenders and the applicant stated that in Vietnamese society at that time, the black society people could bribe the police. The invitation was in 2004. The Tribunal asked about the second invitation the applicant states she had received in 2008, noting that she had stated she had repaid the debt by 2006. The applicant stated that one was to do with her husband, because of family violence between them. This happened in 2006 when she asked for a divorce, he was upset and committed family violence, because at that time he was aware she was going to travel to Australia. The Tribunal observed that it was having difficulty understanding this and the applicant stated that by 2006 she had already paid off her debt to the black society and told her husband she would apply for divorce; he committed family violence against her; the police wanted to chat to her about this but she didn’t attend. That is the reason she didn’t return to [Country]. The invitation was sent to her in 2008 when she was already in Australia and she is not sure of the intention of the police. The Tribunal clarified that she thought the second police invitation was related to her husband committing family violence and she stated ‘family violence and black society, everything’. The Tribunal asked about the link between the two and the applicant stated that her husband was behind the black society group. She knows this because often she saw him talk to those people.
The Tribunal asked the applicant about the history of family violence by her husband and she stated that it started in 2006 when she paid off the debt and told her husband she wanted to apply for a divorce. Prior to 2006 it ‘happened but not too often’; sometimes her husband would invite his friends to a party and they would sometimes commit violence towards her. The Tribunal noted the applicant’s representative had provided written submissions stating that ‘the appellant claims to have suffered almost immediate mistreatment, starvation and was detained against her will for two months. The last 10 days of her detention was most traumatic when [Mr A] had his male friends over to get drunk, and then requested the appellant to have sex with them’. The applicant stated in response to this ‘sometimes’, and it would happen every few weeks. The applicant then described an incident that had occurred at the end of 2006 when her husband asked her to have sex with his friends and when she refused he hit her and broke her teeth and her leg. He then shut her up in a room underground in [Country]. As to how she was able to return to Vietnam, she stated that she begged him to let her out because he could see she was seriously injured. She returned to Vietnam and stayed 13 days and then in 2007 travelled to Australia. She bought a return ticket but didn’t use it. The paperwork for Australia was started when she contacted her sister and mentioned family violence, and her sister wanted to sponsor her in 2006 and 2007.
In response to further questions by the Tribunal, the applicant stated that she was married in Vietnam and stayed in [Country] on a permanent residency visa. She believes she could return to [Country] because she has married a [Country] man. She left [Country] and after 2007 didn’t return and didn’t apply for an extension of her permanent residency visa and would need to start again with an application to return.
The Tribunal asked the applicant about her fears if she returns to Vietnam and she stated that she is afraid to return. Firstly, she has been away too long and her name is deleted from the household register. She also has a fear of the black society and would have to face her husband. The Tribunal asked why she would still be of interest to the black society and she stated that her husband was behind the black society gangsters and she is afraid he may use them to hit her or cause injury to her. The Tribunal asked whether there was

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anything else, apart from seeing him talk to [Ms B] and [Mr C], that made her think he was connected to them and she stated that he often partied, ate and drank with those people and she saw him give them money. She saw this at a restaurant or coffee shop in Vietnam. The Tribunal asked the applicant to clarify that she was living with her husband in [Country] after their marriage and she stated that in 2005 she came back to Vietnam. The Tribunal noted that the applicant had not seen her husband since 2007 and he had not spoken to her family since 2015 and asked why she would still fear harm from him. The applicant stated it was because he had threatened their family and he uses people from the black society to threaten people. It is still happening and every time her husband travels to Vietnam he uses those people to threaten her family.

The Tribunal asked about the applicant’s claims to have gone to her sister’s place in [Country] before going back to Vietnam and she stated that she had mentioned the incident where her husband had locked her up for two months. She begged him to let her go to her adopted sister’s place; at that time he had to return to Vietnam. Her sister lived a long distance away and came and picked her up, and she stayed there for a couple of weeks. She then had to return to her husband when he came back and she stayed with him until she mentioned to him in 2006 that she wanted a divorce. She clarified that she had been locked up for two months, this was six months after she arrived in [Country], in late 2004 or early 2005. For two months he forbid her to leave the house and locked her in an underground storeroom. Then for 10 days when she asked him for a divorce.
The Tribunal noted that the applicant’s written protection application stated that in late 2006 she had asked her husband for a divorce and was locked in his house for two months, which was different to what she was telling the Tribunal at the hearing. The applicant stated in response that in May 2004 she left Vietnam for [Country]. He was ok to start with and then became violent. He locked her up for two months and after that she begged him to go to her sister’s house. He went to Vietnam and allowed her to go to her sister’s. When he came back she also had to go to his house and by the end of 2006 she told him she wanted a divorce and after that he organised the party with his friends, and hit her and locked her up in an underground house for 10 days. The Tribunal asked how she had escaped the house and she stated that he let her starve and hit her, so when he saw she was about to collapse he took her up. This was at the end of 2006 and towards 2007 she applied for a visa to travel to Australia.
The hearing was ended at this point due to the interpreter being unavailable for a longer period of time.
Tribunal hearing 21 October 2019
The Tribunal reconvened on 21 October 2019 and the applicant again attended the hearing with her representative and the Tribunal was assisted by a Vietnamese interpreter. The Tribunal asked the applicant to clarify the periods she had stated she was locked up by her husband. She stated the first time was in 2005 for two months; the second time was in 2006 for 10 days, when her husband hit her with a stick and broke her teeth and leg and didn’t allow her to go to hospital. The Tribunal noted that at the previous hearing the applicant had said the first time, for two months, was at the end of 2004 six months after marriage, and the applicant stated in response that she had gone to [Country] [in] May. The Tribunal asked the applicant to clarify when she had stayed with her adopted sister in [Country] and she said she doesn’t know.
The applicant stated she had been in [Country] when she made the application for the Australian visa. After she was hit by her husband she went to her sister’s in [Country] and talked to her, and her sister spoke to her sister in Australia. She doesn’t remember how long she was at her sister’s for. She agreed she was granted a visa for Australia in February

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2007 and stated she was in [Country] when she found out the visa had been granted, with her husband. As to how she had gone back to her husband after staying with her sister, she stated that her husband went to Vietnam and then returned to [Country], and ‘allowed her to go’. She then stated that in 2006 she went back to her husband’s house, for a few months at the end of 2006. [In] March 2007 she went back to Vietnam and talked to her family and said she could not go back to [Country]. She stated that her husband had let her go from [Country] to Vietnam. The Tribunal noted the applicant’s written application had stated that ‘with the help of family, relative and friends I was able to escape and travel to Australia’. The applicant stated in response that she told him she travelled to Vietnam and her sisters helped her to open a business, so he allowed her to go. The Tribunal asked in what way the applicant had escaped from her husband and she stated she didn’t understand. The Tribunal stated that the applicant had said both that she escaped from her husband and that he had let her go, and she stated that in Vietnam her family helped her escape to Australia, and when her husband knew he got a gangster to get her back.

In response to further questions by the Tribunal, the applicant stated that she had applied for the visa from [Country], was told the visa was granted in February 2007 when she was in [Country] and that she went to Vietnam in March 2007 and flew to Australia out of Vietnam. The Tribunal asked where she had stayed in Vietnam in March 2007 and she stated in her family’s house in Ho Chi Minh City; this was owned by her father. The Tribunal noted the applicant had stated in her written protection application that in March 2007 she had stayed in her husband’s apartment in Ho Chi Minh City and she stated in response that her husband travels from [Country] to Vietnam and stays in that apartment; her husband rents the apartment from another person. The Tribunal asked the applicant to clarify in whose apartment she had stayed in in March 2007 before leaving Vietnam and she stated that it is an apartment that her husband rents and when her friend helped her fill out the form she said it was an apartment close to her father’s house. She then stated to the Tribunal that she stayed in her father’s apartment in March 2007 and not in her husband’s apartment.
The applicant confirmed her earlier evidence, given on the previous date, that her husband’s business involved [Product 1] and [Product 2] and nothing else. The Tribunal asked why the applicant had stated in her written protection application that she had worked in her husband’s [Product 3] business from 2004 to 2007 and she stated that she worked for ‘the other company’. Initially she had worked in [Country] but then her husband didn’t allow her to communicate with anyone else. She confirmed her evidence that she had not worked for three years for her husband’s [Product 3] business. As to why she had put this in her application, she stated she stayed in [Country] for three years and worked for one month. She then stated this had not been her husband’s [Product 3] business but was someone else’s.
The Tribunal confirmed the applicant’s earlier evidence that she had not had any savings when she arrived in Australia. She stated that when she applied for the visa to Australia her sister in Australia helped her and sent the application to [Country] to her. She had applied for a visa twice; she doesn’t remember when the first application was but it was after she asked her husband for a divorce in 2006.
The Tribunal noted it had obtained the applicant’s family visa file from the Department and that the application stated she had full time employment as a process worker in a [Product 3] factory and had been there for two years. The applicant stated in response that she had worked for the [Product 3] company for one month and after that her husband didn’t allow her to. The Tribunal noted that the family visa application stated that the applicant had applied for a tourist visa in April 2005, not after she asked her husband for a divorce as she had said, but before, and that this may raise doubts about her stated reasons for leaving Vietnam. The applicant stated she does not understand. The Tribunal noted that in her family visa application the applicant provided bank statements showing she had [Amount] dong in savings which was equivalent to $[Amount] AUD, which appeared to be different to her
evidence to the Tribunal that she had come to Australia with no savings at all. The applicant stated in response that the account is her brother and sister’s in Australia that they deposited into. The Tribunal noted that the applicant had provided her husband’s documents, including his passport, in support of her family visa application and that it was difficult for the Tribunal to understand how she had access to these documents if she had fled in fear of him from [Country]. The applicant stated that when she applied for the visa, she said she would come here to ask her brother and sister to open ‘the shop’ and this is why he supplied the documents to her.
The Tribunal noted that a representative had made written submissions on behalf of the applicant for her family visa, including that she is settled in her home country of [Country]; that she has a husband remaining in her home country; that she has full-time employment in her home country; and that there are no circumstances which might induce her not to return to her own country; and that these factors were put to show the applicant did not intend to settle in Australia and was wanting only to visit Australia. The applicant stated in response that her husband rented an apartment in Vietnam for a long time and travelled for work.
The Tribunal had before it two police invitations provided by the applicant:
· The first was dated [March] 2004 and was inviting the applicant to attend the police station on [date] March 2004 ‘to thoroughly grasp the socialist labor duties’;
· The second was dated [July] 2008 and was inviting the applicant to attend the police station on [date] July 2008 ‘to present yourself’.
The Tribunal discussed these documents with the applicant during the hearing and noted that country information by DFAT indicates that document fraud is common in Vietnam. The applicant stated that her husband used money with the police; in 2008 she was invited by them but was in Australia. She had a debt to a gangster and her husband called her back.
As to whether she could reside in another area of Vietnam the applicant stated her husband is powerful and has money to control the police force. The Tribunal asked the applicant whether there are any reasons she fears returning to Vietnam and she stated that the first thing is she has been out of the country for a long time and her registration has been cut up; her second fear is of her husband and that he will bring her back to [Country].
The applicant’s sister provided evidence in support of the applicant as a witness. The applicant’s sister told the Tribunal that the applicant is living with her. She was under ‘a serious violation’ because her husband hit her a lot and broke her teeth and leg. Her husband is a businessman and has money. She helped with the applicant’s visa application and paid ‘a small amount of fee’ to a lawyer. The [amount] surety was from her savings. The applicant’s husband knew she was coming to Australia and they asked him to let her go to Australia and her husband would give her money to do a business.
The Tribunal asked the applicant’s sister whether she had spoken to the lawyers who prepared the family visa application and she stated she doesn’t know. She then stated her husband and an interpreter attended; and then stated to the Tribunal that she and her husband went. She had not provided the bank statement to the lawyer showing her sister had $[amount] in savings. She had only given the deposit for the $[amount] and had not given her sister money for her bank account. Before coming to Australia, her sister worked in Vietnam, but not [Country], in her father’s [business]. The Tribunal asked about the application indicating that the applicant had worked full time in [Country] and the applicant’s sister stated she could not work in [Country]. As to who had instructed the solicitors to write that the applicant had full-time employment, the applicant’s sister stated she doesn’t know.

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The applicant’s sister also stated that the applicant’s husband is powerful in Vietnam and can use gangsters. He is a businessman and has money. She wants the applicant to see the doctor for her mental health as the applicant sometimes stays in her room crying and laughing.
The applicant’s representative submitted to the Tribunal at the conclusion of the hearing that it can be inferred that the applicant couldn’t secure a visa for her to escape [Country] or Vietnam if they declared her circumstances as they were, and they had told him they did everything they could to secure a visa. While DFAT and the US Department of State may have favourable assessments of the police force, his client on the other hand reiterates how difficult it is for protection to happen. Vietnamese society is based on money and connections; her husband is quite connected and is able to maintain connections in Vietnam, including for the applicant to attend police stations.
Country information
The following country information was summarised and discussed with the applicant during the hearings and she was invited to comment on the information during the hearings. The Tribunal notes that at the time the hearings were conducted, the most recent DFAT report for Vietnam was from 21 June 2017; subsequent to the hearings a further DFAT report was issued, dated 13 December 2019. The relevant parts of the DFAT report discussed at the hearing and relied upon by the Tribunal in making a decision in this matter, however, remain the same, in particular the following information:
Economic reforms in Vietnam have transformed the country into one with low middle income status and the national poverty rate has declined significantly.³ The law prohibits discrimination with respect to employment on the basis of gender, however, in practice these are not enforced. Vietnam has minimum wage standards.⁴
The applicant stated in response to this information that no one can access services in Vietnam.
DFAT states that security and law enforcement are highly visible throughout Vietnam, particularly during politically sensitive occasions or potential demonstrations.⁵ Police forces operate at national, provincial, district and local levels. There are reports of the police using thugs to harass and beat political activists and others considered a threat to national security.⁶ The court system is made up of a Supreme People’s Court, provincial and local courts and tribunals. Inadequate training of judges and arbitrators, and lack of experience and independence, creates varying quality in court processes and inconsistent implementation of the law. Bribes and irregular payments to facilitate favourable judicial decisions are perceived to be common.⁷
The applicant stated in response that if family violence was happening and she called the police, the police don’t come.
Family violence remains a prevalent problem for women in Vietnam.⁸ The law criminalises using or threatening violence against women, taking advantage of a person who is unable to act in self-defence, and rape, including spousal rape. Conviction for rape is punishable by up to 15 years imprisonment. However, authorities treat domestic violence as a civil case
³ DFAT Country Information Report Vietnam, 13 December 2019, at 2.8 & 2.9.
⁴ DFAT Country Information Report Vietnam, 13 December 2019, at 2.12 & 2.15.
5 DFAT Country Information Report Vietnam, 13 December 2019, at 2.47.
6 DFAT Country Information Report Vietnam, 13 December 2019, at 5.6 & 5.7.
7 DFAT Country Information Report Vietnam, 13 December 2019, at 5.10 & 5.13.
8 DFAT Country Information Report Vietnam, 13 December 2019, at 3.74.
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unless the victim suffered injuries to more than 11 per cent of the body. The law also specifies acts constituting domestic violence and stipulates punishments for convicted perpetrators ranging from warnings through probation to imprisonment for up to three years. Domestic violence against women is common, with a 2015 survey finding that 59 per cent of married women had suffered physical or sexual abuse at least once in their lives. Officials openly acknowledge domestic violence as a significant social concern and the media discusses it openly. Social stigma prevents many survivors from coming forward due to fear of harassment from their spouses or family.⁹

Police and legal systems are described by the US Department of State as being generally unequipped to deal with cases of domestic violence. The government, with the assistance of domestic and international NGOs, has trained police, lawyers, community advocates and legal systems officials in the law and has supported workshops and seminars aimed at educating women and men about domestic violence and women’s rights.¹⁰
The applicant stated in response to the above information that all of this information is wrong. She herself has witnessed cases where family violence occurred and the hospital and police didn’t come. Gangsters threatened them and when they called the police they didn’t come.
The Immigration and Refugee Board of Canada reports that there are two streams of procedures for filing a divorce in Vietnam, depending on whether there are conflicting issues or not. A sole party is able to request a divorce and the court will permit the divorce if it has grounds to believe that a spouse has committed domestic violence or has seriously infringed upon the rights and obligations of the husband or wife. When divorced, if a party facing financial difficulties requests maintenance for plausible reasons, the other party has an obligation to provide maintenance according to their ability.¹¹
The applicant stated in response that if her husband gave money to a gangster to come and visit her family, the police would not attend if her family called them.
424A letter
Following the hearing the Tribunal wrote to the applicant under s.424A. The letter sought comment from the applicant on the following information:
Firstly, you have given inconsistent evidence about your employment arrangements in [Country]:
·In your written protection application you said that you worked in your husband’s [Product 3] business in [Country] from May 2004 to March 2007;
·At the Tribunal hearing you said your husband had a [Product 1] and [Product 2] business and had no other type of business;
⁹ US Department of State, Country Report on Human Rights Practices 2018, Vietnam, 13 March 2019.
¹⁰ US Department of State, Country Report on Human Rights Practices 2018, Vietnam, 13 March 2019.
¹¹ Immigration and Refugee Board of Canada, ‘Vietnam: Divorce, including availability of divorce to women, associated costs, support services available to divorced women and single mothers; whether the government mandates financial support and/or child support to ex-spouses; treatment of divorced women/single mothers; custody orders, including decisions made in favour of mothers’, 11 February 2016.
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At the Tribunal hearing you said you did not work in a [Product 3] business for your husband for three years and that initially you had worked but your husband didn’t allow you to communicate with anyone else;
In your application for a sponsored family visitor visa you said you had full-time employment at [Name Product 3] Factory in [Country] for two years;

In legal submissions accompanying the sponsored family visitor visa your representative submitted you had full time employment available to you in [Country].

This information is relevant because the inconsistencies in your evidence may lead the Tribunal to not accept that you were unemployed while living in [Country] with your husband or that you were unable to work because your husband didn’t allow you to communicate with anyone else. It may also cause the Tribunal to doubt the truthfulness of your evidence about your circumstances while living with your husband in [Country]. It may cause the Tribunal to doubt that you left Vietnam because of a history of violence from your husband or that you fear harm from your husband on return to Vietnam. It may cause the Tribunal to not accept that you have a well-founded fear or persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

Secondly, you and your sister have given inconsistent evidence about your financial circumstances when you arrived in Australia.

Your application for a sponsored family visitor visa included a bank statement for your bank account and accompanying legal submissions that when you arrived in Australia you would have TWD$[Amount] in savings, equivalent to $[Amount] Australian dollars;
At the Tribunal hearing you said that you had no savings when you arrived in Australia;
When the information in your sponsored family visitor visa was put to you at the Tribunal hearing, you told the Tribunal that the money in your bank account statement had been deposited by your sister and brother in Australia;
Your sister told the Tribunal that she had paid a $[Amount] surety for you but had not put any money into your bank account.

This information is relevant because the inconsistencies in your evidence, and in the evidence your sister gave to the Tribunal, may lead the Tribunal to not accept that you had no savings when you came to Australia or that you had been unable to work in Vietnam or [Country] due to your husband’s controlling behaviour. It may cause the Tribunal to doubt the truthfulness of your evidence about your circumstances while living with your husband in [Country]. It may cause the Tribunal to doubt that you fear harm from your husband on return to Vietnam. It may cause the Tribunal to not accept that you have a well-founded fear of persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

Thirdly, you and your sister have given inconsistent evidence about whether you escaped Vietnam for Australia.

In your sponsored family visitor visa you provided a copy of your husband’s passport and written legal submissions that you were settled in your home country of [Country], and that there were no circumstances in your home country which might induce you to not return to your country;
In your written protection application you said that with the help of family, relatives and friends you were able to escape Vietnam and travel to Australia;

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At the Tribunal hearing you said that your husband allowed you to go to Australia to open a business;
At the Tribunal hearing you also told the Tribunal that in Vietnam your family helped you escape to Australia and when your husband found out he got gangsters to get you back;
Your sister told the Tribunal that your husband knew you were coming to Australia and she and her husband had asked your husband to let you come to Australia on the basis that her husband would give you money to run a business.

This information is relevant because the inconsistencies in your evidence, and in the evidence your sister gave to the Tribunal, may lead the Tribunal to not accept that you escaped Vietnam with the help of family, relatives and friends. It may lead the Tribunal to not accept that your husband found out and got gangsters to get you back. It may lead the Tribunal to not accept that you left Vietnam because of a history of violence from your husband or that you fear harm from your husband upon return to Vietnam. It may cause the Tribunal to not accept that you have a well-founded fear of persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

Fourthly, you have given inconsistent evidence about where you were living when you returned to Vietnam from [Country] in March 2007, before you departed for Australia.

In your sponsored family visitor visa your representative submitted that you were a permanent resident of [Country] and were residing in [Country];
In your written protection application you said in March 2007 you were in your husband’s apartment in Ho Chi Minh City, Vietnam;
At the Tribunal hearing you told the Tribunal that you were at your family’s house in Ho Chi Minh City which was owned by your father;
You then told the Tribunal that your husband rents the apartment from your father;
You then told the Tribunal that it was an apartment close to your father’s house;
You then told the Tribunal that it was your father’s apartment that you were staying at in March 2007.

This information is relevant because the inconsistencies in your evidence may lead the Tribunal to not accept that you were staying with family, or in your family’s apartment, in March 2007 prior to travelling to Australia. It may cause the tribunal to not accept that you escaped from your husband, or that you fear harm from your husband upon return to Vietnam. It may cause the Tribunal to doubt the truthfulness of your evidence. It may cause the Tribunal to not accept that you have a well-founded fear of persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

Fifthly, you have given inconsistent evidence about previous visa applications to Australia.

In your sponsored family visitor visa you said that you have previously applied for a visitor visa in April 2005;
In your written protection application in response to the question ‘have you ever had an Australian immigration visa refused or cancelled?’ you said no;

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·At the Tribunal hearing you said that you had applied for a visa and it was refused, so you applied a second time;
·At the Tribunal hearing you said you had applied for both visas after you asked your husband for a divorce in 2006.

This information is relevant because the inconsistencies in your evidence may lead the Tribunal to not accept that you had applied for the first visitor visa after asking your husband for a divorce in 2006. It may lead the Tribunal to not accept that you asked your husband for a divorce in 2006. It may lead the Tribunal to not accept that you applied for a visa for Australia on either occasion because you had suffered harm from your husband or fear harm from your husband upon return to Vietnam. It may lead the Tribunal to doubt the truthfulness of your evidence. It may cause the Tribunal to not accept that you have a well-founded fear of persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

The applicant’s representative responded to the Tribunal’s correspondence, the relevant parts of which are discussed further below.¹²
Findings of the Tribunal
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see: Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant arrived in Australia [in] March 2007 and became unlawful as of [July] 2007. She did not lodge a protection application until 6 May 2015. Her stated reasons to the Tribunal for the eight year delay were that she ‘didn’t have the requisite knowledge’ and ‘suffered fearfulness’. The significant delay in claiming protection in addition to the
12 Representative submissions 23 November 2019.
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discrepancies in the applicant’s evidence, discussed further below, lead the Tribunal to have doubts about the credibility of her evidence and her stated reasons for having left Vietnam.

There are other aspects of the applicant’s evidence that have been consistently put and which the Tribunal accepts. The Tribunal accepts the applicant was born in Saigon, Vietnam, that her father continues to reside in Saigon, that her mother and one brother have passed away, that she has another [number of] brothers in Vietnam and that her sister is currently living in Australia. The Tribunal accepts the applicant completed high school in Saigon. The Tribunal accepts she was married to a [Country] businessman, [Mr A], in 2004 and that she lived in [Country] with her husband between 2004 and 2007. The Tribunal is prepared to accept the applicant is separated but not divorced from her husband and is prepared to accept that her last contact with her husband was in 2007, prior to travelling to Australia.
However, a number of discrepancies in the evidence given by the applicant as to her reasons for leaving Vietnam lead the Tribunal to have significant doubts about her credibility. In particular, the Tribunal notes the following inconsistencies:
·      The applicant gave inconsistent evidence about the family violence she states she experienced while living in [Country] and Vietnam with her husband. The applicant’s evidence at the first hearing was that she had been locked up for two months in late 2004 or early 2005 and then had been further locked up for 10 days after she asked her husband for a divorce. At the second Tribunal hearing she stated it had been in 2005 and then she was locked up for a further 10 days in 2006. When her representative’s submissions were put to her, which were that she had been mistreated and starved almost immediately after the marriage in 2004 and detained for two months in 2004, she replied ‘sometimes’ and that it had been every few weeks.
·      The applicant gave inconsistent evidence about her employment arrangements while in [Country], stating in her written protection application that she had worked in her husband’s [Product 3] business from May 2004 to March 2007. At the Tribunal hearing the applicant stated her husband had a [Product 1] and [Product 2] business and that there were no other aspects to his business. She told the Tribunal that she had not worked in a [Product 3] business for her husband for three years and that initially she had worked but her husband had not allowed her to communicate with anyone else. In her sponsored family visitor visa application, the applicant had stated to the Department that she had full-time employment at [Name Product 3] Factory in [Country] for two years. The applicant’s representative also submitted on her behalf, in the sponsored family visitor visa application, that she had full-time employment available to her in [Country].
·      The applicant gave inconsistent evidence about where she was living in Vietnam in March 2007 before she departed for Australia. In her sponsored family visitor visa the applicant’s representative submitted that she was residing in [Country]. In her written protection application the applicant stated that she was in her husband’s apartment in Ho Chi Minh City, Vietnam. The applicant told the Tribunal that she was at a house owned by her father in Ho Chi Minh City and, when the inconsistencies in her accounts were put to her, then stated that her husband rented the apartment from her father, and then stated that it was an apartment close to her father’s house, and then stated that that it was her father’s apartment.
·      The applicant also gave inconsistent evidence about the circumstances in which she came to Australia. She stated in her written protection application that she escaped Vietnam with the help of family, relatives and friends. At the Tribunal hearing the applicant told the Tribunal that her husband had allowed her to travel to Australia to
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open a business. She then gave evidence to the Tribunal that her family helped her escape and when her husband found out he got gangsters to get her back. The applicant’s sister, in her evidence to the Tribunal at the hearing, told the Tribunal that the applicant’s husband knew she was coming to Australia and she and her husband requested the applicant’s husband to let her come to Australia on the basis that the applicant would be given money to run a business.
· The applicant also gave inconsistent evidence about her financial circumstances when she arrived in Australia. At the Tribunal hearing, the applicant told the Tribunal that she had no savings when she arrived in Australia. The applicant’s application for a sponsored family visitor visa included a bank statement from her bank account and accompanying legal submissions that when she arrived in Australia she would have TWD$[Amount] (the equivalent of $[Amount] AUD) in her account. When this information was put to the applicant during the Tribunal hearing, she stated that the money had been deposited into her bank account by her sister and brother in Australia. The applicant’s sister then gave evidence that she had not put any money into the applicant’s bank account. In the applicant’s post-hearing submissions, her representative submitted that the funds were deposited by her sister in [Country], and the Tribunal noted that this information was different to that given by the applicant herself at the hearing.
· The applicant has, further, given inconsistent evidence about previous visa applications to Australia. In her sponsored family visitor visa, she said she had previously applied for a visitor visa in April 2005. In her written protection application, the applicant stated that she had not previously had an immigration visa refused or cancelled. In her evidence to the Tribunal at the hearing she stated that she had applied for a visa and it was refused, so she applied for a visa a second time, and that she had applied for both visas after she had asked her husband for a divorce in 2006. The Tribunal finds that the applicant first applied for a visa for Australia in April 2005 and that this was a year prior to her asking her husband for a divorce. The Tribunal does not accept the applicant first applied for an Australian visa after she asked her husband for a divorce.

All of the above inconsistencies lead the Tribunal to have significant doubts about the circumstances in which the applicant states led her to leave Vietnam for Australia.
In post-hearing submissions, the applicant’s evidence regarding the family violence the applicant states she experienced, the representative submitted that the applicant’s husband had ‘escalated the abuse and beatings’ after she requested a divorce. The Tribunal did not accept this explanation, which differed from the accounts given by the applicant herself.
Regarding the inconsistencies in the applicant’s employment arrangements, in response to the 424A letter sent, the applicant’s representative submitted that she had worked for a short period of time in ‘the [Product 3] business’ and that she had asked her boss to assist with taxation documents for her previous visa application; she knew this was wrong but did it because of extreme fear of life with her husband. The Tribunal finds that the issue of the provision of taxation documents by the applicant’s former employer was not raised by the applicant herself in any of her evidence. The Tribunal did not accept that the applicant worked for a short period of time in [Product 3] business before obtaining taxation documents from her former employer.
Regarding the inconsistencies in the applicant’s evidence about where she was living in March 2007 before leaving for Australia, the representative submitted that the applicant stayed with her family in property owned by her father. Given the inconsistencies in the applicant’s various accounts of where she was residing in March 2007, the Tribunal did not accept that she stayed with her family in March 2007 prior to leaving for Australia.

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Regarding the inconsistencies in the applicant’s evidence about the circumstances in which she came to Australia, the applicant’s representative submitted that the applicant needed to tell her husband that the reason for her travel to Australia was to seek money to open a business in [Country]. However, the representative also submitted that when the applicant’s husband ‘discovered that she had fooled him’, he terrorised the family by getting thugs and gangsters to terrorise, including spattering paint on the family’s home in Vietnam, forcing the applicant to return to him. The applicant had not, at any point, raised that her family’s house had been spattered with paint. Given the inconsistencies in the applicant’s evidence, the Tribunal did not accept as plausible that the applicant’s husband terrorised her family or spattered paint on the family’s home or used thugs and gangsters to terrorise the family or that the applicant was forced to return to her husband.

Regarding the applicant’s inconsistencies in her stated financial circumstances when she arrived in Australia, her representative submitted in response to the 424A letter that the applicant’s sister in [Country] had deposited money into her account and then proceeded to keep the applicant’s bank book and card. The representative then submitted in his response that the applicant had no money at the time of departure and her sister in Australia spoke to the sister in [Country] to borrow the amount needed to help with her visitor visa application. This was an account inconsistent with the accounts given by the applicant as to the amount in her bank account. The inconsistencies in the applicant’s about her financial circumstances, in addition to the applicant not disclosing she arrived with any money in her account until evidence of this was put to her at the Tribunal hearing, lead the Tribunal to not accept that she had no savings when she arrived in Australia, that her sister in [Country] deposited the money into her account, or that her sister in Australia had spoken to her sister in [Country] to borrow money for a visitor visa application.
Regarding the applicant’s previous visa application to Australia, the representative, in responding to the 424A letter, stated that the applicant intended to complete her own paperwork for a visa application but aborted that intention because she did not know where to begin. For the reasons stated above, the Tribunal does not accept that the applicant first applied for an Australian visa after she asked her husband for a divorce.
The Tribunal has considered whether the discrepancies, set out above, may have been caused by the applicant’s nervousness, due to lapses in memory after time or cultural differences, or due to trauma or mental health issues. While the representative submitted in post-hearing submissions that the applicant’s sister holds serious concerns for the applicant’s mental health, the Tribunal did not have any evidence before it of a mental health diagnosis and this assertion was denied by the applicant herself. Given the extent of the discrepancies in the applicant’s evidence, the Tribunal does not accept that any mental health issues provide an explanation for the discrepancies outlined above.
Given the inconsistencies in the applicant’s evidence and the Tribunal’s significant doubts about the applicant’s credibility, discussed above, the Tribunal does not accept the applicant’s husband started abusing her after she asked for a divorce in 2006 or that she was beaten and locked in a house for two months and left without food. The Tribunal does not accept that, after this, the applicant was then beaten, raped and starved for 10 days. The Tribunal does not accept the applicant was locked in a house for two months almost immediately after her marriage in 2004, or in late 2004 or early 2005, or during 2005. The Tribunal does not accept she was locked up for a further 10 days in March 2007 or after she asked her husband for a divorce in 2006. The Tribunal does not accept the applicant was hit with a stick and had her teeth and leg broken by her husband. The Tribunal accepts the evidence of the applicant that she has not seen her husband since 2007 and that he has not had any contact with her family members since 2015.

Case Number 1702817 Page 17 of 22

The applicant arrived in Australia with savings that she did not disclose to the Tribunal until the Tribunal put this directly to her at the hearing. She asserted that her sister had provided the funds to her, however, her sister stated she had not. The Tribunal finds that the applicant’s arrival in Australia is inconsistent with her having been unable to work while she was living in [Country] and Vietnam. The inconsistencies in the applicant’s evidence as to where she was living in Vietnam in March 2007 before leaving for Australia, the inconsistencies in her evidence about her financial circumstances when she arrived in Australia and her evidence about her husband’s business and the work she did in [Country] lead the Tribunal to have significant doubts that she had been unable to work while living with her husband in [Country]. The Tribunal does not accept that the applicant was unable to work while in [Country] due to family violence from her husband.
The applicant’s inconsistent evidence about whether she escaped from her husband or whether he gave her money to come to Australia to open a business lead the Tribunal to have significant doubts that the applicant fled Vietnam because of family violence from her husband. The Tribunal does not accept the applicant fled Vietnam because of family violence from her husband.
Because of the Tribunal’s significant doubts about the applicant’s credibility, it also does not accept that the applicant borrowed money for a family business debt or that her husband was part of a loan shark group she borrowed money from. The Tribunal does not accept the applicant’s husband was part of a black society group. The Tribunal does not accept that the applicant’s husband, upon becoming aware she was preparing to travel to Australia, was looking for her and harassing her with his associates, or that he was harassing her family through a local gangster. The Tribunal does not accept the applicant’s representative’s submissions that the applicant is a victim of human trafficking and is at risk of beatings, rape, degrading and inhumane treatment, discrimination, persecution and possible murder because she is a victim of human trafficking.
The applicant provided to the Tribunal two police invitations and states she was invited to attend a local police station in 2004 and 2008. The Tribunal considers it implausible that the applicant was invited to a police station after unregistered moneylenders from a black society made a complaint to police. The Tribunal asked the applicant about the 2008 invitation and the applicant’s evidence was vague and unclear as to the reasons for the invitation. The Tribunal does not accept the applicant was invited or summoned to a local police station in 2004 ‘to thoroughly grasp the socialist labor duties’ or was invited or summoned to a local police station in 2008 ‘to present yourself’.
The Tribunal finds that, if the applicant returns to Vietnam now or in the reasonably foreseeable future, she would not be at risk of harm from her husband. The Tribunal bases this finding on its finding that the applicant has had no contact with her husband since 2007 and he has not contacted her family since 2015, and on its findings as to the applicant’s credibility, set out above. The Tribunal is not satisfied that the applicant has a well-founded fear of serious harm because of any past family violence from her husband. The Tribunal is not satisfied the applicant has a well-founded fear of serious harm from black society gangsters in Vietnam.
The applicant stated that she fears returning to Vietnam because her name has been deleted from the household register. The Tribunal notes that the applicant has renewed her passport since living in Australia and finds that the applicant’s requirement to re-register with the household register does not meet the threshold of serious harm.
The applicant’s representative submitted that the applicant’s sister and brother-in-law are concerned about her mental health. No medical evidence was put before the Tribunal confirming that the applicant suffers from mental health issues and the applicant denied she

Case Number 1702817 Page 18 of 22

suffers from a mental health condition. The applicant did not submit to the Tribunal that she fears harm for reasons of her mental health. The Tribunal is not satisfied that the applicant has a well-founded fear of serious harm because of mental health concerns.

The applicant stated that she fears returning as she will have no home or job, as her family home has been passed down by many generations. The Tribunal finds that the applicant’s father and [brothers] live in the family home in Saigon, in the house in which the applicant grew up. The Tribunal finds that the applicant would be able to return to reside with her father and brothers. The Tribunal finds that she has previously worked in Vietnam for her father’s [business] and that she has found work in Australia [in a workplace]. The Tribunal is not satisfied that the applicant has a well-founded fear of serious harm because she may have difficulty finding accommodation or employment.
The Tribunal has also considered the cumulative claims of the applicant; however, it is not satisfied that she has a well-founded fear of serious harm for any reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Vietnam now or in the reasonably foreseeable future. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s36(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).
‘Significant harm’ is defined at s.36(2A) to include arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. The Tribunal is not satisfied that the applicant will face significant harm upon return to Vietnam. The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.
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.
Tamara Hamilton-Noy
Member

Case Number 1702817 Page 19 of 22

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

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

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:

Case Number 1702817 Page 20 of 22

(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.

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.
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.
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.
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.
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:

Case Number 1702817 Page 21 of 22

(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

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.
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.

...

Protection visas – criteria provided for by this Act
...
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.

...

Case Number 1702817 Page 22 of 22

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Jurisdiction
Procedural Fairness
Statutory Construction

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Citations

1702817 (Refugee) [2020] AATA 2109

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

Nagalingam v MILGEA [1992] FCA 470

[2020] AATA 2109

23 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction