1710340 (Refugee)
[2021] AATA 3963
•18 August 2021
1710340 (Refugee) [2021] AATA 3963 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710340
COUNTRY OF REFERENCE: Vietnam
MEMBER:Anne Grant
DATE:18 August 2021
PLACE OF DECISION: Melbourne
DECISION:In relation to [the first-named applicant], the Tribunal affirms the decision not to grant the applicant a protection visa.
In relation to [the second-named applicant], the Tribunal does not have jurisdiction in this matter.
Statement made on 18 August 2021 at 12:28pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – economic hardship and ethnic and religious minority – borrowed money from illegal lenders for daughter’s wedding – threats and attempted harm – government and police corruption and persecution – physical and mental health – deaths of daughter and second applicant, religious rituals and tending to graves – credibility – implausible size of unsecured loan and percentage rate – no action by lenders to enforce repayment – anonymous allegation that claims not truthful and sending money to children – possible low-level ethnic and religious discrimination not significant harm – decision under review affirmed for first applicant, no jurisdiction for second applicantLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB [2013] FCAFC 33Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, citizens of Vietnam, applied for the visas on 11 March 2016. The delegate refused to grant the visas on the basis that the applicants did not fear harm for one or more of the reasons in s.5J(1)(a) of the Act. In the alternative, the delegate found that they were not satisfied that there was a real risk of the applicants facing significant harm if they returned to Vietnam in the foreseeable future.
The applicants have experienced some tragic personal circumstances which have impacted on the conduct and finalisation of this review. The applicants came to Australia to support their daughter who developed cancer soon after she migrated here in 2015. She passed away on [Date 1]. The applicants lodged an application for protection on 10 March 2016. The second applicant later fell ill and tragically also passed away on [Date 2].
The applicants were invited to a hearing on 22 October 2019 to give evidence and provide information in support of their claims. That hearing was rescheduled at the applicants’ request because their representative was undertaking major surgery shortly prior to the hearing date. The applicants were invited to attend a hearing on 6 February 2020. On 31 January 2020, the Tribunal was informed that [the second applicant] was suffering serious health conditions and unable to attend the hearing. A medical certificate was provided which described her as suffering from [Metastatic Cancer] and diabetes. Her doctor reported that she had recently undergone chemotherapy and requested that hearing dates be postponed for three months. The Tribunal agreed to the request to reschedule the hearing.
The applicants were next invited to attend a hearing listed on 6 May 2020. The applicants were residing in Melbourne. Shortly before the listed date, due to the Covid19 pandemic restrictions to travel and in-person hearing arrangements, it was determined that the matter could not proceed on 6 May 2020. After discussions with the applicant’s representative, the hearing was rescheduled to a video teleconference on 21 May 2020, with the intention being that the applicants would attend at their representative’s office and participate in the hearing from there, to avoid non- essential travel into the Tribunal’s offices. On 19 May 2020, the applicants’ representative again requested that the hearing be rescheduled due to [the second applicant] being unwell. Supporting medical reports reflected that [the second applicant] was receiving ongoing treatment for incurable [Cancer]. Naturally, this made her vulnerable to any pandemic risk and it was unwise for her to be moving around in the community during the pandemic and the Tribunal agreed to reschedule the hearing again.
As noted above, [the second applicant] passed away on [Date 2].
The hearing was next scheduled for a video conference via the MS Teams application after consultation again with the applicant’s representative. The applicant was to attend at his representative’s office on 16 February 2021. However once again, due to the pandemic and movement restrictions, a request was made to reschedule the hearing, and the Tribunal agreed. On 6 March 2021, a hearing commenced via the video conference application MS Teams but had to be rescheduled because of interpreting difficulties. The applicant and interpreter could not understand one another, and a request was confirmed for an interpreter in the Southern Vietnamese dialect. Subsequent to the hearing, the Tribunal conducted inquiries and a test contact with a different prospective interpreter to ensure that the applicant and interpreter could understand one another before that interpreter was booked for a hearing.
On 26 May 2021, the hearing proceeded by video conference using the MS Teams application. The hearing was assisted by an interpreter in the Southern Vietnamese dialect. The applicant and the interpreter confirmed they were able to communicate effectively. The applicant was present at his migration agent’s office.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has determined that due to the death of the second applicant, there is no longer a valid review application for protection before the Tribunal in her case and the Tribunal has no jurisdiction to make a decision. This will be reflected in the Tribunal’s final decision. The primary applicant’s claims are unaffected by her passing away and the Tribunal will proceed to review those claims.
The issue in this case is therefore whether the first applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Vietnam, there is a real risk that he will suffer significant harm.
Written Claims and supporting information provided prior to hearing.
The applicant’s written claims were;
· The applicant said he left Vietnam and travelled to Australia ‘to be with his ill daughter who passed away on [Date 1]’.
· The applicant claims he ‘will be experiencing all kinds of torture’ and that he ‘might [lose] [his] life as well.’
· The applicant said that he did not think the Vietnamese authorities could or would protect him if he returned to Vietnam because the authorities do not get involved when ‘those groups’ do things and therefore would not protect him. He said that if he returned to Vietnam and were to make a complaint about ‘those groups’ then those in charge, such as police officers, would punish and kill him. He said that even if he were to sell his house to pay back the loan, the money wouldn’t be enough to cover the accumulated daily high interest.
· The applicant said he did not think he could relocate within Vietnam as ‘those groups’ have branches everywhere and could reach the applicant and his wife anywhere they go. He said that because he is from a minority group people would easily notice him and would voluntarily ‘provide’ them to those groups for a reward.
· The applicant said that he hopes his children would hide and find a way to leave Vietnam without being harmed.
· The applicant claims that ‘things’ had happened since he has been in Australia and that ‘a t[h]reat has been made’.
· In her claims, the secondary applicant said that her ‘husband is doing his best to solve the problem [but] unfortunately the situation is beyond our control because we are so poor and we don’t have anyone [who] can provide protection to us.’
Prior to the hearing, a number of documents were received from the applicant as follows and have been considered by the Tribunal:
· The delegate’s decision of 8 May 2017 (provided with the applicant’s review);
· Death Certificate for [Ms A] describing her date of death as [Date] at [Hospital 1] in [Suburb 1], Victoria from [cancer]. Also provided are documents from her physicians confirming her illness and details of her desire to have her parents with her. The applicants also provided a letter from their daughter dated 23 November 2015 in which she requests that her parents be able to visit her due to her recent diagnosis with terminal [cancer].
· Letter from [Hospital 1] to the Department of Immigration and Border Protection stating that the applicants’ daughter had passed away and requesting that they be permitted to remain in Australia to carry out customs following her burial including daily visits to her grave for up to six months. This letter, dated 5 January 2016, reflects that they will continue to be ‘financially supported and housed by [Ms A]’s mother in law’.
· Medical documents dated April 2017 related to [the second applicant]’s investigation for [cancer] and treatment by Medical Oncology department at [Hospital 2] during 2016;
· Letter from [Hospital 3] radiotherapy social worker [Ms B] dated 24 July 2019. In this letter, [Ms B] confirms the circumstances facing the applicants and states that it is her understanding that it would not be possible for [the second applicant] to access appropriate and effective treatment in managing her cancer in Vietnam. [Ms B] urges the Department to allow the applicants to remain in Australia on compassionate grounds.
· Letter from [Hospital 2] department of Oncology dated 31 July 2019 confirming [the second applicant]’s diagnosis on 22 September 2016 and outlining treatment plans.
· Palliative Care [provider] letter dated 18 March 2020 from [Ms C], Social Worker. [Ms C] writes to ‘support an application for permanent residency on compassionate grounds.’ She notes that they have been living in Australia for four years and have a small circle of friends who provide practical and emotional support. The applicant has work in a factory. [Ms C] adds “[The second applicant] expresses deep concern for her physical safety if she returns to Viet Nam due to their religious identity and inability to maintain their financial situation.” She further notes that permanent residency would provide immense value to [the second applicant] during her end of life and be beneficial for the first applicant to remain connected to social and economic support during his time of bereavement.
· Statement from Financial Manager of [Employer 1] 25 May 2020 which states that the applicant is employed at [Employer 1] on a full-time basis since 7 March 2019. This letter says that the applicant is a ‘suitably qualified individual’ in the [job task] division with weekly income of $662.28 ‘after tax’.
· Statutory Declaration of applicant made on 21 May 2020 which includes the following information:
We belong to the ethnic minority community and we are Muslims. Now, I would like to make the following statement.
As ethnic minority people, we have received inadequate attention from the Government. In terms of religion, we are not given much freedom of religious practice.
I cannot provide relevant supporting evidence relating to the loans which I took out in March 2014. These loans were spent on the wedding of my daughter, which took place on 20/04/2014.
Since it is a loan from the black market, the lender(s) did not document it for the purpose of evidence. That's why I would like to provide the following information:
1. I borrowed money from 2 persons.
- The first person is under the name of [Mr D], living in Saigon.
- The second person is called [Mr E], living in Chau Doc.
2. The total loan amounts are 300,000,000 VND.
3. Interest rate: 30%.
4. Loan duration: for an indefinite term until the loan is paid off in full.
5. I promised to repay them the loans once my daughter arrived in Australia and got a job to help me pay off the loans.
Unfortunately. my daughter had been here for only 2 and a half months before she fell ill and later passed away.
Since I could not repay any single sum or the loans, the lenders have threatened and attempted to cause me physical harm on various occasions. Whenever they came to find me for the loan, while we were in Vietnam, my wife and I had to run away for a hiding place.
While my wife and I were in Australia our children telephoned us to inform that the lenders came to our home very frequently. They knocked at our door at 1:00 or 2:00 am. They threatened to cut off our children’s ears if we would not repay them the loans. That’s why our children had to run away from home for a hiding place. The initial purpose of my coming to Australia was to look after my ill daughter, hoping that she would get well and find a job to pay off the loans. However. my daughter passed away not long after that. Hence I could not repay the loans.
On my wife’s part, it is because she has been distressed with the feeling of missing our children and the debt trouble that she suffers from [cancer]. It was because we were under constant threats that my wife has suffered severe stress for the constant fear of being killed by the lenders.
After our daughter had passed away, my wife and I were extremely distressed so much so that we cannot think clearly.
We talked to the mother of our son-in-law about our daughter’s death wish 2 or 3 months later. We were very worried if we had to return to Vietnam. We were frightened that the lenders would kill us and we would not be able to pay off the debts since they are too big. They have already threatened our family regardless we pleaded to them on various occasions before we came to Australia. After we had left home, they came to look for me at around 1:00 am or 2:00 am. Since they could only see my children, they threatened to cut off my children’s eyes if we would not return to Vietnam. Our children were so frightened that they had to run away for a hiding place.
Regarding freedom of religion: the fact is that there is no such thing, especially with respect to the ethnic minority group. The Muslims are always discriminated here. The Government treats us in a harsh manner and has always considered the Muslims as second class citizens. My wife and I are very frightened at the thought of being forced to return to Vietnam.
· Submission of [Migration agents] 28 May 2020. In this document, the applicant’s representative includes the following submissions (restatement of applicant’s claims are excluded for brevity):
The applicants were born in Vietnam and always lived in Giang in Vietnam. They were married and have three children, two who still reside in Vietnam.
Citing Viet Nam News, it is submitted that there are ‘heaps’ of small to medium size businesses operating in Vietnam and known as ‘black credit mobs.’ They operate on a large scale using small to medium lenders with personal loans sometimes 10 times higher than maximum interest rates allowed in the banking system. “This usually makes it almost impossible for borrowers to meet their repayment obligations. Consequently, loans become hard to recover due to the inability of borrowers to make their loan repayments and cases may become insolvent by courts. Debt collectors become the only available option for those lenders to recover their money if or when possible.”
Debt collectors are hired because traditional legal resolutions are not considered realistic, because the loans have high interest rates and are considered illegal.
The applicant has been hesitant to provide full details of the debts when he lodged his application because of a fear of the consequences of releasing that information to the Tribunal.
According to this submission, “threats have been received on multiple occasions by the client from those debt collectors’ gangs. The threats were delivered to the applicant through friends and family who still reside in Vietnam.”
The “things” which happened whilst he was in Australia referred to by the applicant in his written claims were the unexpected death of his daughter, the inability to pay off the debts as a consequence of the death because his daughter could not provide him with financial assistance, the applicant has financial liabilities that he cannot pay, and this has created a potential risk of the applicant getting threats to his life and possible torture by the debt collectors who are criminal gangs in Vietnam.
The applicant is an uneducated person from a poor Vietnamese family. He never attended school until 10 years of age. He has limited ability to express himself.
The delegate has acknowledged the presence of corruption in the Vietnamese authority. The majority of available reports provide the severity of police corruption in Vietnam. They have failed in various situations to provide fairness and justice in dealing with public matters.
Vietnamese fear state persecution if found talking about government corruption.
A recent report provides that Vietnamese police liaise and use gangs in some of their operations against the public. (this was reported in an RFA article entitled “Vietnamese activists say authorities ally with gangsters to suppress people” 20 June 2019. An activist is quoted as saying they are certain that police hire thugs to assault people on public disorder charges.
“There are too many cases when the Vietnamese police brutally attack innocent people” – referring to a 2014 Human Rights Watch article on deaths in custody and police brutality in Vietnam.
The submission is that little trust can be given to Vietnamese authorities. This supports the applicant’s claim that the Vietnamese police may kill the victims due to their relationship with gangsters.
According to an ARC report in June 2017, (itself referring to the Christian Solidarity Worldwide publication in March 2017) “Buddhists, Catholics, Cao Daists, Hoa Hao Buddhists, Protestants and Muslims are experiencing severe violations of the right to freedom of religion or belief (FORB) ranging from harassment, intimidation and intrusive monitoring or arrest, imprisonment, torture and extra-judicial killing. The most serious violations tend to be against individuals who are both ethnic and religious minorities, particularly those in remote areas.”
The applicant (and his wife) may be considered to be vulnerable and ‘won’t be able to receive adequate and fair assistance and care from the Vietnamese authorities are known by their discrimination against the minority groups of Vietnam to whom the applicant belongs.’ It is claimed that ‘this is proof that the applicant and his wife will be endangering their lives if they are to be removed from Australia and to be returned back to Vietnam where they will not be able to receive the minimum fair help in their current situations – because the applicant faces the threat of racism as he belongs to the Muslim minority in Vietnam’.
Under the complementary protection provisions, the submission claims:
§ The applicant is at risk of suffering significant harm if removed to Vietnam.
§ The risk exists ‘on the basis of other prosecuted inhabitants on the ground of not being able to receive any kind of protection by local police force when gangs are involved.’
§ There is a real risk of significant harm, premised on substantial grounds, and is a necessary and foreseeable consequence of his removal.
§ On the facts of the case it appears ‘substantially likely’ that the applicant will face significant harm if he is to returned to Vietnam
§ The applicant fears that he will be killed on return by the debt collector’s gangsters who had previously threatened him and his family. The judiciary system is unable to intervene and provide a fair decision to both parties. The applicant’s life is at a high risk.
§ Torture is frequently used in Vietnam by government and non-government actors. There is a real risk that the applicant will be subjected to torture based on the facts prescribed in details earlier.
§ Under the descriptor “degrading treatment or punishment” it is submitted that it would be most likely that the applicant will face punishment as he has not been able to pay back his debts to the lender. “This could be considered a legal case by the judiciary system if it’s to be referred to the applicable court under the consent of the lender. Either way the applicant may be found guilty of not being able to pay off the debts.”
§ If the applicant returns to Vietnam it would be likely that he would face cruel or inhuman treatment or punishment by the gangsters.
§ The applicant is owed protection in accordance with the criterion set out in section 36(2)(aa) of the Migration Act.
· Letter from [head company] stating that the applicant worked at [Employer 2] between 27 June 2016 and 2 December 2016 as a general operator.
· Death Certificate for Second Applicant.
· Letter from second applicant requesting that her husband be allowed to permanently reside in Australia in order to look after her grave and that of their daughter. This letter also requests that [Ms B] undertake the cleaning and shrouding procedure in accordance with Islamic traditions for Muslims.
· Letter of 9 December 2020 from Palliative Care [provider] confirming the applicant’s bereavement and his desire to remain in Australia so he can remain connected with his wife and daughter.
· 28 January 2021 letter from [Dr C] advising that that applicant suffers from hypertension, reflux gastritis, [Body part] pain and major depression. According to this report, his problems were controlled well with medication and his depression has been related to his wife who passed away on 17 October 2020.
· Submission of the applicant’s legal representative dated 14 February 2021. In this submission, the representative makes the following arguments (in summary);
The representative confirms the death of [the second applicant]. The diagnosis of cancer was unknown to the applicant or his wife before they came to Australia in 2015. The applicant has been suffering severe mental distress due to the loss of his wife and daughter, and due to the other problems previously raised.
The applicant would like to visit the graves of his wife and daughter to undertake normal Muslim rituals to provide prayer and offerings. This would impact on his wellbeing and if he is required to leave Australia, this would cause him trauma.
The applicant will suffer from many issues such as threat, death and trauma as consequences of all the above factors.
The Tribunal is invited to handle the case with full care and not deny the applicant the opportunity to continue to honour his wife and daughter in their graves.
“We ask the Tribunal to consider the abovementioned fact believing that our client has the merit for Australian protection under the Complementary Protection Scheme as per section 36(2)(aa) where the applicant is potential going to suffer from at least mental health if he is to return home due to:
1.The death of his wife and daughter in Australia and the fact that they both have been buried in Australia as well.
2.The threats from the debt collectors in Vietnam.
3.The fact that how the minority Muslims in Vietnam are mistreated and denied natural justice as well as fair procedures by the government.”
· Letter from [Mr F], Psychologist dated 8 March 2021. This letter confirms that the applicant has commenced counselling under a mental health care plan. [Mr F] describes that applicant as presenting as depressed, with constricted affect. The applicant described himself as a Cham person, an ethnic minority from the Mekong Delta region of Vietnam. Mr Dinh notes that it appears the applicant’s mental health state has deteriorated further since his wife’s death, such that he seemed to be experiencing an episode of major depressive disorder also with passive suicidal ideations at times. [Mr F] requests consideration of his protection visa on compassionate grounds due to his tragic circumstances. It would allow him to attend and look after the grave of his wife and daughter and to pray for them at their grave sites. In addition ‘[The first applicant] appeared genuinely fearful for his safety should he return to Vietnam.’
Evidence at hearing
The applicant gave evidence that he borrowed 300,000,000 dong (approximately AUD $17,721 at current exchange rates) from underworld loan providers with an interest rate of 30% per month (90,000,000 dong or $5,316). The Tribunal double checked that he meant interest of 30% per month and he confirmed this. It was put to him that this was difficult to accept as plausible, because a debt of that size and with interest that high would and could never be repaid –in Vietnam or even in Australia. He was given the context that this is nearly twice as much as the typical repayments on a $500,000 mortgage in Australia per month, without ever making a reduction on the principal. It was noted that very few Vietnamese would earn more than $5,000 net per month and that it seemed unlikely that a sum this high (interest at 90 million dong per month) would be ever earned by a labourer in Vietnam. The applicant’s own written evidence suggests that he and his wife were ‘poor’.
The applicant responded that he thought his daughter could pay it back when she got a job in Australia and if she had not been moving to Australia, he would never have risked borrowing the money. He confirmed that his daughter hoped to work as [an Occupation 1] in Australia but then became unwell almost as soon as she got here. The Tribunal informed the applicant that it could not understand how the applicant had ever expected to repay the debt, which was borrowed in 2014, with no repayments ever having been made. On this basis, he was informed that the amount and interest he claimed were difficult to accept as plausible, even though it might be accepted that high interest rates on ‘black market loans’ do occur. The applicant maintained that his claims were true. He suggested that when his daughter got to Australia, perhaps she could have borrowed some money to repay the debt. But then she got sick and never worked.
In answer to the Tribunal’s questions, the applicant said that he found the moneylenders when he went to visit his daughter who was studying in Ho Chi Minh city. There were advertisements there. When he made enquiries, they asked where he lived and later visited his address. They agreed to provide him with a loan. When asked if his home was security for the loan, he said it was not. He gave evidence that the lenders just went ‘on trust’. The applicant confirmed that the home has not been sold and is still in the applicant’s name. He was aware of and referred to a neighbour dispute with one of his neighbours that has arisen since he has been in Australia, saying that one of his neighbours has tried to use some of his land.
The applicant said that the house is empty because his children (who are adults) got threatened there and went into hiding. Debt collectors came in the night and threatened them to repay the debt or they would come back and chop off their ears. This happened after the applicant and his wife came to Australia in 2015. The children left and have not returned. A friend checks on the property and cleans the land.
The applicant said that he had not sent money home to Vietnam for his children or to repay the debt. The Tribunal wondered why the debt collectors haven’t taken possession of the property in payment or part payment of the debt. The applicant responded that this was because he had promised them – convinced them that he would repay the debt.
The applicant claims that the debt collectors would kill him if he returns because the debt remains outstanding, with interest. As noted above, he said he has never repaid any part of the debt by sending money back to his children since he’s been in Australia, even though his children have had to go in to hiding to avoid the debt collectors. The applicant gave evidence that he has only ever earned enough to support himself and his wife here in Australia. The applicant was asked why he had not sold the home to reduce the debt and he said that he only has one home. If he sells it, they would have nowhere to go back to. The applicant said he is still hoping to earn enough to send money back to repay the debt. If he can be settled properly in Australia, he claimed he could work very hard for that purpose.
The Tribunal put to the applicant that it had difficulty accepting his claims about the loan as plausible, given the size and terms of the debt and the fact that he had never repaid any of it. Despite his claim that the money lenders and debt collectors were aggressive enough to threaten his life and physically assaulting his children in 2015 and early 2016, the debt collectors had not even bothered to take possession of his property, either through legal or illegal means, even though he would not be there to defend any claims. The applicant responded that life is not valued in Vietnam and they will do ‘whatever they need to do’ to get the money. It was noted that physically impairing or killing the applicant would not actually assist the debt collectors to recover any money but would in fact make it even more unlikely that they would ever be paid.
The applicant gave evidence that his children are now living as street vendors, as nomads. He claimed that they spend nights with friends or relatives. His friend who checks the house has not been approached or threatened by anyone. He said this was probably because his friend is not living in the house. When the applicant lived there, they came at night, banged on the door and threatened harm. They were terrified. This was also what happened to his children.
The Tribunal asked the applicant how the creditors and debt collectors would ever know he had returned to Vietnam if he did return, given that they have not been questioning anyone about his return. He agreed that they would not know the date or even that he had returned. When it was noted that this suggests he might not, therefore, be at risk of harm from the debt collectors, the applicant said that nonetheless he has a fear that he will be killed if he doesn’t pay them back. He suggested that if he pays them a little bit, they may be patient, hoping for more. They have a network of people in all provinces and he is convinced they will track him down if he tries to relocate. He confirmed that they have never found his children because, in his words, they are living on the run, moving around within the province. He claimed that his only contact with them is through [social media].
The applicant was asked if he were to return to Vietnam, where would he live and what work would he do. He said he would rather die in Australia than in Vietnam, to be near his wife and daughter. It was noted that he also has children in Vietnam. The applicant replied that he can never leave his wife and daughter here in Australia. When it was noted that ultimately, it is not a question of his own preference, but depends on the outcome of his protection application, the applicant responded that if he returned, he would go to Chow Doy in South Vietnam. He confirmed that he has a brother in Vietnam who has not received any threats from the debt collectors and he could probably stay with his brother. The applicant said that the debt collectors are ‘looking only for the applicant’ (not other family members) because he is the one responsible for the loan.
The applicant confirmed that he lived and worked in Vietnam for his whole life before coming to Australia. He said he has low education and might not find a good job. He would have to work as a handyman. He agreed that he could return and do the same work or type of work he did before, but claimed that if he did so, he would not have sufficient money to repay his creditors.
The applicant confirmed that he could stay with his brother, or he could move to a bigger city where there was potentially a greater demand for labourers. The applicant said that even so, as a member of a minority ethnic group the opportunities in cities were not great, and he would only be able to find casual work.
The applicant was asked what harm he had experienced in Vietnam as a member of a minority ethnic group and also as a Muslim. He said that ‘they’ did not do him any harm, but there is ‘some racism’ going on. Minorities get referred to as ‘slow or retarded’ people, and are looked down on. He claimed that the larger Vietnamese community harbours resentment toward the minority group and towards Islamic people. When asked to provide examples, the applicant said that if he tried to approach other community members, say at work, they would be distant from him. The applicant said that they also get lower priority but it was not clear to what the applicant was referring.
The applicant was asked whether the police and authorities in Vietnam would be able to protect him from the harm he feared. He was referred to his written claims which suggest that he would be harmed by police if he made a complaint. He responded that this was partially true because the black market groups have some control over police and might harm him for complaining. Also, because of his minority group he doubted that the police would give him any assistance or protection.
At hearing the applicant was alerted to a letter which had been sent in to the Tribunal on 2 August 2018 which made allegations about the applicants, suggesting that their claims were untrue and were fabricated to stay in Australia; and that they had been sending money to Vietnam to their children. The applicant was advised that the Tribunal would send them a formal notice of this information so that they could respond to it in detail.
On 26 May 2021, the Tribunal wrote to the applicant in accordance with s.424A of the Migration Act and invited the applicant to comment on or respond to certain information which had been discussed briefly at hearing. The Tribunal noted that this information would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. This information was an anonymous letter sent to the Tribunal directly on 2 August 2018. The summarised content referred to in the 424A notice was as follows:
The particulars of the information are:
• The information is a letter sent anonymously to the Administrative Appeals Tribunal
on 2 August 2018. As discussed at the hearing the Tribunal considers that it is
necessary to give you an additional opportunity to consider and respond to the
letter if you wish to do so. A copy of that letter is attached to this document.• This letter suggests that you were not being truthful in claiming that you owed
$20,000 to creditors in Vietnam, and that this claim is not true but was made
because you want to stay in Australia. The letter also suggests that you were
working 7 days a week, earning more than $1,000 and that you were sending
money home to Vietnam to your children under a friend’s name.This information is relevant because it suggests you are not a witness of truth when it
comes to your claims to fear returning to Vietnam due to debts that you owe or owed
to creditors. If the Tribunal gave some weight to this document in its’ consideration of
your claims and evidence, and ultimately concludes that you are not being truthful in
claiming that you fear harm in Vietnam due to debts owed, it would be part of the reason for the Tribunal to affirm the decision under review.The content of the anonymous letter (which was attached to the invitation to comment) was as follows:
To Whom This May Concern,
I know this couple, whose names are:
[The first applicant]
[The second applicant]
(Case number:1710340)
Two years ago, they have applied for a Protection Visa and are waiting for their application to be accepted.
This couple has given false documentation in the past two years. After their daughter’s death they want to stay here.
They have said that they own money from people back in Vietnam and are afraid to go back.
In Vietnam, no one will let you borrow that much money ($20,000).
They are liars because they just want to stay here.
At the moment the husband goes to work 7days a week and earn more than $1000. They started working ever since their daughter’s death up to now. The wife stays home now because her husband earns that much money, also she has send a lot of money to their other daughter and son in Vietnam under her friend’s name as she worries that the migration office will find out one day.
They also go around asking friends and a few doctors to help them but they never tell the truth. They just act poor and don’t know anything.
They even asked people in the [Suburb 2] Community asking for help and continue to tell lies.
They keep moving houses and never update the details to the Migration office because they are worried that they will get caught one day when their application has been refused.
This couple should be deported back to Vietnam asap.
This is the wife’s number [Telephone number] if you want to contact her.
I hope you guys can look back at all the documents from them and investigate.On 23 June 2021, the applicant responded to the information in the notice in a declaration as follows:
My name is [the first applicant].
…
The reason for this letter is that my application for an Australian permanent residence visa was refused by the competent authority on the grounds that the debts I claimed to have are not true and that I have fabricated this story. I would like to swear in the name of Allah the Creator that this story is all true and there is nothing but the truth.My wife and I would love our daughter so much. I am a Muslim and a member of an ethnic
minority group residing in a remote and disadvantaged area. First of all, my religion has been
badly treated. Secondly, the fact that our daughter got married to an Australian and became an Australian citizen herself has made us, my wife and myself, so happy. It is not only I who was happy for her, but our relatives did as well.
Since our family was so poor, but we loved our daughter so much, we went on to borrow those amounts of money to organize the celebration of a wedding for her. Additionally, our daughter advised us that once she got over to Australia she would try her best to work to earn enough money to repay the debts as soon as possible. Otherwise, she would borrow from her friends or take out some bank loans or do anything else whatsoever.It is, however, so unexpectedly sad that things did not roll out as planned. Not long after our
daughter arrived in Australia did she know that she had cancer. Because of this, my wife and I
had to come over here to care for her. Sadly, our daughter passed away after only 2 months and 15 days. At that time we were so distressed and confused. We did not even think of continuing to stay in Australia at all either.At the present. the person who has helped us the most is our daughter's mother-in-law. Her
name is [Ms G]. She knows our family extremely well and helps us from A to Z.
She helps connect us with immigration officials regarding our application. She took us to our
appointments and for other purposes as well. Since we both did not know English at all, we told her everything that happened to us as well.Since we do not have relatives at all in Australia, we have relied on [Ms G] (she is
our daughter’s mother-in-law) for everything. Therefore I am confident that it is [Ms G] who has sent those letters.Previously, while my wife was still alive, my wife and I stayed at [Ms G]'s home
for a certain period of time when we first arrived in Australia. Then, 3 or 4 months after our
daughter had passed away, my wife insisted on us moving out. When I asked her the reason,
she did not say anything. However, I felt that my wife was very sad at the time. Soon after we
did move out and we rarely come back to her home ever since.And if I were returned to Vietnam, there would be bad things happening to me. l borrowed
those amounts of money from the black market (mafia) lenders and in a communist-ruled country like Vietnam anything can happen.Above is all the fact that I would like to bring to your attention. It would be great luck for me
if you believe it; otherwise, it would be my bad luck if you do not believe it. There is one thing
I know for sure is that when I come back to Vietnam, my personal safety is not guaranteed for
two reasons. The first reason is that the black market (mafia) lenders will track me down for
punishment. The second reason is just my religion.And I hereby confirm that the accusations that I fabricated the story for the purpose of remaining in Australia are not true.
I would be grateful to you for your review of my case.
Now, I am even further saddened by the fact that my wife has passed away. Both my daughter and my wife were buried in this country of Australia. Therefore, I would be grateful to you for your review of my case for the sake of humanity and my personal safety.
I would like to remain in Australia for the following reasons. Firstly, it is for my own personal
safety. Secondly, l will be able to look after the tombs of my wife and daughter l do not have
any relatives in this country at all.I would also like to beg you to review the accusations made by others. What are the gains or
losses they expect to achieve from making these accusations?Once again, in the name of Allah the Great, I undertake that all the above statements that I make are true and correct and there is nothing but the truth.
I always wish that God wilt bless you and the work you have been doing and that you are always happy and peaceful.
I would be sincerely thankful to you.
..The applicant’s representative also provided an additional submission in response. That submission, in summary was that:
· All the information provided by the applicant is 100% true.
· His deceased wife had ‘some arguments’ with their deceased daughter’s mother-in-law, which lead to them moving out of her home to ‘avoid any further conflict.’ The applicant believes that she has made the ‘unfounded information’ due to family conflict that previously occurred.
· Country information reflects that borrowing money on the ‘black market’ occurs in most cities of Vietnam. An article is cited from Vietnam Law and Legal Forum State Bank steps up fight against “Black Credit” 21 April 2019. Paragraphs were extracted from the article which refer to Loan sharks often offering loans of ‘up to tens of millions of dong’ which may be disbursed right away without collateral. The article says “However, in case borrowers cannot repay their debts in time, they and their relatives will be subject to scary violent debt collection tricks.”
· The applicant claims to have borrowed ‘$20,000’ from two lenders and promised to pay them off with the help of his deceased daughter after her arrival to Australia. The representative asks if ‘scary violent’ debt collection tricks are used for smaller debts ‘what would be the penalty of not paying off double debts of such high amount?’
· No evidence is provided by the letter writer who expresses hatred towards the applicant and his family.
· The applicant has been suffering from mental and psychological illnesses due to the tremendous heartbreaking events that continuously happened since he arrived in Australia.
· If the Tribunal does not succeed in his application, his agony would be elevated by denying him living close to his deceased wife and daughter’s graves on the one hand and by accepting the harsh penalties for not being able to pay off the debts if he is forced to return back to Vietnam.
The applicant’s submissions in response to the notice suggest that the most likely author of the letter is his daughter’s former mother in law, who assisted them with migration and other matters after the death of his daughter and was privy to important personal information. He asks the Tribunal to consider what the writer has to gain by writing this letter, and his representative suggests that it was made out of malice. Since the applicant and his wife were no longer living with [Ms G] in 2018, nor being financially supported by her at that time, it is hard to see any benefit she would gain by making the allegations about the falsity of their claims if they were not true. The motivation of the letter writer appears to be to prevent false claims being used to base a migration application. The applicant may be correct in assuming that it was someone who knew he and his wife early in their period in Australia who wrote the letter, because the content of the letter suggests that the writer’s knowledge is limited to the period before [the second applicant] became unwell.
The applicant denies that he or his wife sent money home to his children using other names (as suggested in the letter) and claims that he has not repaid any part of the debt in the period since he came to Australia.
The Tribunal notes that the article referenced by the representative (which has been located online and considered by the Tribunal) refers to smaller amounts of debts than the type of debt claimed by the applicant.[1] This article also includes the following information:
According to the Ministry of Public Security’s statistics, over the past four years, the police have detected more than 7,600 illegal credit-related criminal cases, including 56 cases of murder, 398 cases of causing injury intentionally, 629 cases of robbery, 836 cases of property seizure, 165 cases of property destruction, and 170 cases of swindling, among others.
Later in March, the police office in the central province of Thanh Hoa announced the result of investigation into a large “black credit” group operating under the cover of a finance company. It was found that the loan shark - Tin Nghia company - offered loans with yearly interest rates ranging between 100 percent and 300 percent. When borrowers are late in paying the interest, they will be threatened, harassed and assaulted.
Claim to fear serious harm from lenders and debt collectors due to a debt of 300,000,000 Dong from 2014 with monthly interest and repayments of 30%
[1] State Bank steps up fight against “black credit” (vietnamlawmagazine.vn)
According to the Department of Foreign Affairs and Trade (DFAT) most recent country information report on Vietnam[2],
2.48 Organised crime groups exist, and engage in prostitution, extortion, gambling, illicit drug trade and human trafficking. As noted in Health, illicit drug use is a growing problem and activities associated with the drug trade have contributed to an increase in the crime rate. While violence associated with the drug trade has largely been limited to rival gangs, local authorities in Hanoi have reported a rise in the level of violence associated with crimes (assaults, homicides and robberies) affecting the general population. Petty crime occurs regularly in larger cities and towns, and is reportedly increasing. The Economist Intelligence Unit’s 2017 Safe Cities Index rated 60 cities (including Ho Chi Minh City) worldwide across 49 indicators, including digital security, health security, infrastructure security and personal security. Ho Chi Minh City ranked 56th overall, ahead of Jakarta, Dhaka, Yangon and Karachi, and 58th in terms of personal security, ahead of only Caracas and Karachi.
2.49 Illegal moneylending is widespread in Vietnam, largely due to the complicated nature of accessing bank loans. Interest rates are often extortionate. A 2018 UK Home Office report found that some borrowers unable to repay loans, or their families, had been trafficked or forced into labour or prostitution. Police investigations into illegal moneylenders have reportedly increased, including through the establishment of dedicated police units in some provinces. As the high interest rates are typically not written on loan papers police face difficulties in convicting illegal moneylenders…
5.33 …Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see Security Situation). Anecdotally, indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh Provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
[2] DFAT Country Information Report, Vietnam (13 December 2019).
The Tribunal accepts that the general country information, including DFAT’s most recent report as extracted above, the reports referred to by the applicant’s representative and in the delegate’s decision, reflects that black market lenders in Vietnam do make loans at high interest rates to members of the Vietnamese community (up to 300% per annum) and that they may use debt collectors to recover those loans. The Tribunal also accepts that it is plausible that debt collectors may use intimidation, threats of violence and violence in their efforts to recover debts. The country information does not suggest and the Tribunal does not accept that debt collectors are immune or protected by police from prosecution for such offences, that police will ignore or fail to investigate violence or threats of violence surrounding debts, nor that the police are likely to harm (or kill) reporters of debt related violence, as the applicant claimed in his submissions.
It is also noted that the country information referred to by the applicant’s representative generally suggests that the black market lenders make loans of much smaller sums than that claimed by the applicant – amounts in the ‘tens of millions of dong’ rather than in the ‘hundreds of millions of dong’ claimed in this case. It is also noted that the figures in the article most recently cited by the applicant’s representative suggest that whilst violence occurs (including 56 cases of murder over a four year period to 2019), it is also common for debt collectors to actually seize or damage property to recover a debt.
The Tribunal does not consider that the country information establishes that all unpaid debts will be on high interest rates or that they will be vulnerable to debt collection/gang involvement. The country information does not establish that there is a real chance or a real risk that violence will be used in every instance of a person owing (and failing to pay) a debt to an underground moneylender. Each case must be assessed on its’ own circumstances.
The Tribunal advised the applicant that the principal amount and interest of the debt he claimed to have in Vietnam was difficult to accept as truthful. Prior to the hearing, the Tribunal had only had an indication that the interest rate was 30% - and no indication of whether it was monthly or annually. At hearing, the applicant claimed it was 30% per month, which the Tribunal found (and advised the applicant that it found) implausible. This would mean the monthly repayments in the applicant’s case would be around 90,000,000 dong - more than 14 times the average total gross monthly income of a citizen[3] - this makes no practical nor business sense for the lender. The monthly interest alone could not be repaid and the principal would be lost. If the lender’s goal or recovery strategy was to acquire the applicant’s property in default, as discussed in the country information above property seizure is practiced by debt collectors to recover outstanding loans. A loan of this size and on these terms may have been plausible as a form of property acquisition – but in that instance, the lenders would reasonably be expected to have taken action to seize his assets in his absence over the years which have passed. This has not occurred. In addition, the highest reported interest rate (on smaller loans in the ‘tens of thousands’ of dong) was noted to be 300%. The applicant claims an annual interest rate of 360% on a very large loan which the Tribunal considers would by its own terms be self-defeating for a lender, creating an immediate ‘bad debt’ situation.
[3] (average wage for 2020 is 6,340,000 Dong per month); (average wage is around 3,450,000 Dong per month); and -area/ (average wage is 5,940,000 in rural areas and 7,790,000 in urban areas)
Further, the applicant’s claim that the moneylenders and debt collectors will kill him if he returns ‘to recover the debt’ is lacking in logic. If there is a debt, the applicant would need to be alive to repay it or even part of it. His absence from Vietnam has not prompted the lenders and debt collectors to forcibly seize his property, nor even question his neighbours and family about his whereabouts – suggesting a significantly lower interest in him than is plausible on the large multimillion dong loan (with interest) he claims to owe.
The Tribunal accepts that it is plausible that the applicant borrowed money he could not repay to finance his daughter’s wedding. It is also plausible that he was intimidated and threatened by debt collectors prior to leaving the country to “encourage” repayment; and that his children were intimidated and threatened by the debt collectors once the applicants had departed the country.
Nonetheless, the applicant’s response to the 424A notice Tribunal does not dispel the Tribunal’s concerns about the plausibility of the size and terms of the applicant’s claimed debt, nor about the information in the letter sent to the Tribunal about the genuineness of the applicant’s claims. The applicant asked the Tribunal to consider the motivation of the letter writer but also indicated that he thinks it likely that the writer assisted him with his migration claims. This suggests that the writer would have a direct knowledge of the genuineness or otherwise of those claims.
Having carefully considered the information and evidence before it, the Tribunal finds that the applicant has not been truthful in describing the debt amount, interest payments and repayments made. The Tribunal does not accept that the amount borrowed amounted was 300,000,000 dong from two different lenders, or that the interest rate was 30% (or 90,000,000 dong) per month. Having weighed his evidence, the Tribunal is not satisfied that the applicant’s evidence about the claimed debt size, interest owed and repayment history is reliable and considers that the applicant has significantly exaggerated the size of any debt to bolster his claims for protection.
The Tribunal accepts that the applicant owes money to someone in Vietnam, but does not accept that it is a debt so large (or that the terms of the loan are so poor) as the applicant claims. The Tribunal accepts that the applicant, his wife and members of the applicant’s immediate family have been verbally intimidated and threatened with physical assault by debt collectors in the family home during 2015. The Tribunal is also prepared to accept that the applicant’s children were intimidated and threatened in early 2016 by the moneylender or debt collectors demanding repayments. It is plausible that the applicant still owes some money to those same people. The Tribunal therefore accepts that the lender and/or debt collectors would potentially have some continuing interest in the applicant if he returned to Vietnam without repaying the balance of any debt that he owes or at least making some arrangements to do so.
Based on the applicant’s evidence, the Tribunal accepts that the debt collectors have not found and harmed his two children who remain in Vietnam, who he claims are in hiding since they left the house. The applicant also confirmed and the Tribunal accepts that the debt collectors have not approached nor intimidated the applicant’s brother nor his neighbours in any attempt to locate the applicant. As discussed generally with the applicant at hearing, this suggests that not only do the debt collectors have limited capacity to locate and harm the family of the applicant, but also that they do not have enough interest in him to motivate them to locate and question anybody in his area about his whereabouts over the several years since he departed. They have also not taken action to seize his property in his absence. If the debt were so large as the applicant claims and the debt collectors so dangerous, this complete absence of interest in the applicant or his property would be inexplicable and wholly implausible.
Nonetheless, the Tribunal finds that the debt collectors have not seriously harmed the applicant, his wife or their children (or anyone else associated with the applicant) apart from verbally intimidating them on a couple of occasions at night in 2015 and early 2016. Based on the Tribunal’s findings that the debt is not so large nor on such poor terms as the applicant claims, the Tribunal finds that the applicant’s claim that he will be physically assaulted and murdered by the moneylenders or debt collectors/gang members associated with them is implausible and is not accepted. As noted above, based on the general country information, the Tribunal does not accept that the applicant would be killed or assaulted by Vietnamese police if he reported any safety concerns or threats to police.
The Tribunal has also considered the applicant’s evidence that he has failed to repay any existing debt from Australia by sending money to his children. This evidence is troubling because at hearing the applicant said that he still thought he could talk to the creditor to defer recovery action (to avoid selling his home) if he returned to Vietnam. This is not consistent with his claimed fear of being murdered over a large and completely irrecoverable debt. Further, if the debts were genuinely causing his children to be in hiding and in fear of serious harm as he claims, the applicant’s failure to make payments ensuring the safety of his living children in Vietnam is surprisingly inconsistent with his desire to continue supporting his wife and daughter. Taking that evidence and the information in the ‘dob in’ letter into consideration, the Tribunal does not accept as plausible the applicant’s claim that he and or his wife have not sent money to his children or to repay his debts from Australia in the six years he has lived and worked here (regardless of the size of any debt).
The Tribunal does not accept the submissions made by the applicant’s representative that the applicant has ‘received threats’ through friends in Vietnam. This is not the applicant’s evidence on this point – the Tribunal accepts his evidence that he has only received the threats delivered to his children.
In submissions, the applicant’s representative also raised the possibility that the applicant would face prosecution due to the debt (either civil or criminal) and that, if that occurs, he would risk being imprisoned and seriously harmed. The applicant made no such suggestion during the hearing or indeed, in any of his written claims and statements. In fact, he suggested that he would be able to make some agreement with the debt collectors/lenders on return which would enable him to keep his home. In any event, even if the applicant were to face legal proceedings to enforce the debt, the information and evidence before the Tribunal does not reflect that it would amount to causing the applicant serious harm. Such matters are appropriately dealt with through the Vietnamese legal system and may generally be considered reasonable given his claimed failure to repay a debt which is outstanding (though the Tribunal has not accepted that he has accurately described the actual size of that debt). Nonetheless, the applicant in his evidence implied that he believed he could still negotiate with the creditors and retain his home and did not describe nor suggest any fear of litigation, criminal or civil. The Tribunal finds that there is not a real chance of the applicant facing serious harm in the form of civil or criminal litigation in Vietnam due to an outstanding debt.
In summary, the Tribunal has weighed the applicant’s evidence and considered a number of factors in this review, including:
· The sheer size of debt claimed without security to have been borrowed is implausible given the obvious risk to the lender and lack of any realistic chance of recovering the principal or even interest components due to claimed extortionate interest rates when the applicant’s financial background is taken into consideration;
· The interest rate is so high that interest alone could most likely never be covered, even if his daughter had been able to find work in Australia.
· The Tribunal considers the applicant’s claim that he has not sent money home even though he claims his children in Vietnam were being harassed due to his debts to be implausible.
· The applicant did not use his property for security and he retains the house. He has not sold that asset due to his own evidence that he ‘wants somewhere to return to’ and believes that he could still negotiate with the lenders.
· The information in the letter to the Tribunal and the applicant’s explanation which in fact suggests that the writer would have had some first-hand knowledge of the applicant’s circumstances when he and his wife lodged their claims and in the months afterward.
· The applicant stated that he had negotiated with the lenders in the past and convinced them to wait, and that he believed he could do so again if he returned to Vietnam, to protect his home. This does not reflect that he is negotiating with a ruthless lender (and debt collector) intent on harming or killing him, or even that the debt is as large as he claims. It suggests, in fact, that any debt he owes is still at a manageable level and capable of being repaid by making arrangements - without recourse to violence.
After weighing these various matters, the Tribunal is not satisfied of the veracity of the applicant’s principal claim to fear serious harm due to a large debt owed to money lenders and debt collectors in Vietnam. The Tribunal does not accept the applicant’s claim that there is a real chance that he will experience serious harm (that he will be killed, tortured or significantly harassed) in Vietnam due to having borrowed 300,000,000 from underground lenders at a monthly interest rate of 30%.
Whilst the Tribunal accepts that the applicant may owe some money to someone in Vietnam, the Tribunal does not accept that he would face serious harm from the lender or debt collectors on his return to Vietnam due to that debt.
The Tribunal finds that the applicant does not have a real chance of serious harm in Vietnam due to debts owed to moneylenders.
The applicant’s Cham ethnicity and Muslim faith.
The Tribunal accepts that the applicant is a member of the Cham ethnic group and the Muslim faith and that each of these characteristics mean that he is a member of those minorities in Vietnam. The applicant said that as a member of a minority, he experiences discrimination and being ‘looked down on’ by the prominent Viet community. According to general country information, approximately 1% of the country population is Cham and they are located mainly in the south of the country. The Tribunal could not locate specific country information in relation to the persecution of Cham peoples in Vietnam but notes that the most recent DFAT report includes some discussion around minority groups, more generally and related also to religious minorities.
The most recent DFAT report includes the following information under Race/Nationality but also includes a reflection that there is considerable overlap between factors affecting racial and religious minorities:
3.1 Article 5 of the Constitution enshrines Vietnam’s commitment to the equality, solidarity and support of ethnic minorities; the rights of minorities to use their own language and script; and the rights of minorities to preserve their identities, traditions and cultures. It also commits the government to gradually improving the ‘material and spiritual conditions’ of ethnic groups in Vietnam. There is no single, comprehensive anti-discrimination law in Vietnam, although anti-discrimination clauses exist in a number of national laws.
3.2 Of the 54 recognised ethnic groups in Vietnam, 53 are minority ethnic groups that collectively comprise 13.4 million people (14.6 per cent of the national population). These groups constitute a larger percentage of the population in the Northwest and Central Highlands, and areas of the Mekong Delta. All ethnic minorities have Vietnamese citizenship. Many minority communities in remote locations do not speak Vietnamese and have little interaction with the majority Kinh people. The younger generation of ethnic minorities do increasingly speak Vietnamese through their education in the public school system.
3.3 The Committee for Ethnic Minority Affairs is a ministry-level agency that manages ethnic minority affairs nationwide. In October 2017, the CPV disbanded several regional steering committees through which it had implemented policies in regions with significant ethnic minority populations, including in the Northwest, Central Highlands, and the Southwest regions. The move was reportedly done to streamline the political system in those locations.
3.4 Ethnic minorities account for 72 per cent of Vietnam’s poor. As the economy has grown, the socioeconomic gap between the Kinh and ethnic minority groups has widened. The World Bank reported in April 2018, however, that poverty levels among ethnic minorities had fallen by 13 percentage points between 2014 and 2016, representing the largest decrease in poverty among ethnic minorities in the last decade. Vietnam has identified promoting development for ethnic minority groups in its ‘Socio-Economic Development Plan 2016-2020’. To address this gap, the government continues through its programs to subsidise education and health facilities, expand road access and electrification to rural communities and villages, and allocate land to ethnic minorities in the Central Highlands. While land appropriation is an issue that also affects the Kinh majority, indigenous communities are disproportionately affected, as the government does not recognise their ancestral lands. A number of ethnic minority groups continue to be displaced, including as a result of development projects.
3.5 There is considerable overlap between ethnic, religious, and political issues affecting minority communities, particularly in rural areas. In-country sources report that ethnic minorities at provincial and village levels tend to experience greater official harassment due to their religion, compared to other Vietnamese exercising their freedom of religion (see Religion). DFAT assesses that, in cases where minorities experience discrimination, it is likely to be the result of numerous contributing factors rather than a single causative one. This section should therefore be read in conjunction with other relevant sections.
The applicant has provided vague claims that he would ‘not be cared for’ or would face discrimination or persecution because of his Cham ethnicity, and also that as a Muslim he would receive ‘inadequate attention’ from authorities and not have ‘much freedom of religious practice’ due to his Muslim faith. His own experience in Vietnam, according to the evidence he gave, was that he felt unwelcomed and alienated from co-workers who ‘looked down on him’ from time to time. He was otherwise able to raise a family, find employment, practice his faith and own property. He acknowledged that he would be able to work and own property again if he returned to Vietnam, as a member of the Cham and Muslim minorities. He did not claim that he would be prevented from practicing his faith in Vietnam.
The applicant gave no evidence of having experienced any persecution due to his faith but, like his ethnicity, described feeling discriminated against and looked down on due to his minority Religion. As noted above, when asked if he had experienced ‘poor treatment’ in his past, he gave only very general evidence about feeling ‘disrespected’. He did not describe any specific experiences of suffering harm. His written claims were also very general in nature.
The Tribunal accepts, based on the country information, that the applicant may face some general societal discrimination and hardship due to community attitudes towards minorities. However, the Tribunal considers, based on his past experience and the country information, that it would be at a low level, amounting to some social rejection and lowering of social and employment possibilities. However, the Tribunal considers that the applicant has not established that any such harm would be of a nature which would prevent him from living in his home, finding employment and earning a sufficient income to support himself. Neither would he be prevented or prohibited from practicing his faith. The Tribunal finds that the harm the applicant may experience as a member of the Cham and Muslim minorities (even when the two claims are considered cumulatively) would not involve serious harm. In reaching that conclusion, the Tribunal has taken into consideration the applicant’s past described experience and the definition of serious harm in s.5J(5). The information and evidence before the Tribunal does not establish that there is a real chance that the applicant will experience a threat to his life or liberty, significant physical harassment or ill-treatment, significant economic hardship threatening his capacity to subsist, that he will be denied access to basic services or the capacity to earn a livelihood due to his Cham ethnicity and Muslim faith or any other type of harm which could be considered to be or which would amount to causing him serious harm.
The Tribunal does not accept the applicant’s claim that there is a real chance that the applicant will suffer serious harm in Vietnam due to his Cham ethnicity and or his Muslim faith, now or in the reasonably foreseeable future.
The applicant’s emotional distress and the potential deterioration of his mental health related to him having to leave the graves of his wife and daughter
The Tribunal notes and accepts the diagnosis by the applicant’s psychologist that the applicant appeared to be experiencing a bout of major depression after the death of his wife. The applicant has not claimed to fear persecution in Vietnam due to his mental health or him having to leave his wife and daughter’s graves in Australia, but has pleaded for these factors to be considered and compassion exercised in considering his protection claims. The Tribunal therefore turns to consider this aspect of the applicant’s claims under the refugee provisions.
As noted above, there are many letters before the Tribunal which emphasise that the applicant wants to remain in Australia to tend to the graves of his wife and daughter and that he would experience distress at being separated from them. The Tribunal accepts that the applicant suffers from depression. The evidence from the psychologist (which is accepted) reflects that the applicant has expressed passive suicidal ideation about his personal circumstances. The Tribunal accepts that the applicant would suffer some distress in being separated from his loved family member’s graves. He may also experience depression or an exacerbation of that condition. It is also noted, in the interests of balance, that returning to Vietnam would potentially bring the applicant some solace and emotional support because he would be reunited with his surviving children and family.
The Tribunal accepts the information in DFAT’s most recent report on Vietnam,[4] which suggests that a social health insurance scheme was introduced in Vietnam in 1992, which has contributed to improved health indicators through increased access to healthcare services for beneficiaries, particularly the poor and vulnerable. A 2015 government report found that mental health issues were estimated to affect around 10% of the population. A draft National Strategy on Mental Health (2018-2025) prioritised the provision of health care to poor regions, those in difficult situations, ethnic minorities and other vulnerable groups. It is unclear if this report has been adopted and implemented. Nonetheless, UNICEF reports have indicated that the service environment and response remain largely inadequate, particularly in remote provinces.
2.25 Currently, mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools. The Ministry of Health is responsible for health centre and hospital services to diagnose and provide treatment for serious and persistent mental illness stemming from neurological conditions and developmental disabilities. MOLISA provides social support policies for social protection beneficiaries and services for serious cases.
[4] DFAT Country Information Report, Vietnam (13 December 2019) at 2.20 - 2.32)
The applicant’s submissions and claims have consistently referred to his desire to remain in Australia so he can tend to the grave of his daughter and now his wife and the distress he would experience in leaving them. The Tribunal has accepted that the applicant may experience emotional distress and potentially deterioration of his mental health if he is required to leave his wife and daughter’s graves and that he would prefer to remain here, close to them. The Tribunal finds, however, that these claims do not give rise to a well-founded fear of persecution. This is because the distress and harm caused by separation from the graves (and any mental health deterioration, even if severe) would potentially occur due to the act of removal from Australia and him experiencing grief and loss associated with that distance. It would not involve any systematic and discriminatory conduct as required by s.5J(4)(c). The Tribunal also finds that it would not be ‘for one or more of the reasons’ in s.5J(1)(a). The information and evidence before the Tribunal does not suggest that the applicant would face persecution of any kind in Vietnam due to his poor mental health.
The Tribunal does not accept that the applicant has a well-founded fear of persecution in Vietnam because of his mental health condition or due to emotional distress caused by him having to leave the graves of his wife and daughter in Australia.
No other claims are raised on the information and evidence and submissions before the Tribunal. The Tribunal has considered the applicant’s claims individually and cumulatively. Even considered cumulatively, the Tribunal is not satisfied that there the applicant has a well-founded fear of persecution in Vietnam.
The Tribunal concludes that the first applicant is not a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a).
Complementary Protection
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has not accepted the applicant’s claim that he faces a real chance of serious harm in Vietnam due to him owing money to loan sharks or underground lenders, now or in the reasonably foreseeable future. For those same reasons, the Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm from loan sharks or underground lenders (or debt collectors and gangs associated with them) as a necessary and foreseeable consequence of him being returned to Vietnam.
The Tribunal has found that the applicant may experience some low level discrimination in Vietnam on account of his Cham ethnicity and his Islamic faith.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
The Tribunal has considered the applicant’s described past experience in Vietnam, where he has lived his whole life until 2015, worked and raised a family without facing harm of any kind apart from some social rejection - or more accurately perceived ‘disapproval’ due to his faith and or ethnicity. The Tribunal has considered his claim that he fears that he might be discriminated against and ‘poorly treated’ in Vietnam due to his ethnicity and faith. The Tribunal finds that, whilst there is a real risk that the applicant will suffer low level discrimination in Vietnam, it is not satisfied that discrimination would amount to ‘significant harm’. The Tribunal is not satisfied that the applicant would be arbitrarily deprived of his life; that he would be subjected to the death penalty, that he would be tortured or that he would suffer cruel or inhuman treatment or punishment. The Tribunal is also not satisfied that he would suffer degrading treatment or punishment. The Tribunal concludes that there are there is not a real risk that the applicant will suffer significant harm in Vietnam due to his Islamic faith and/or his Cham ethnicity, even when those ‘minority’ claims are considered cumulatively.
Other matters: the applicant’s mental health and his desire to tend to the graves of his wife and daughter
The Tribunal has accepted the diagnosis by the applicant’s psychologist that the applicant appeared to be experiencing a bout of major depression after the death of his wife. The applicant has not claimed to fear that he will be targeted or harmed by any person or authority in Vietnam due to his mental health. As noted above, there are many letters before the Tribunal which emphasise that the applicant wants to remain in Australia to tend to the graves of his wife and daughter and that he would experience distress at being separated from them. The Tribunal accepts that the applicant would suffer some distress in being separated from his loved family member’s graves. As noted above, on the other hand, however, it is also possible that returning to Vietnam would bring him some solace because he would be reunited with his surviving children and other family (such as his brother).
The applicant has also raised by his submissions and evidence a request that he be allowed to remain in Australia so that he can tend to the graves of his daughter and wife “for compassionate reasons”.
Whilst it is accepted that the applicant suffers from depression and would prefer not to leave Australia because of the loss of his wife and daughter whose graves are located here, the Tribunal does not consider that this aspect of his submissions reflects or suggests that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being returned to Vietnam. It is accepted, for the purposes of this review that if he is returned to Vietnam, he will suffer some emotional distress at being deprived of the capacity to tend to his loved one’s graves and that he will also suffer from depression. However, the Tribunal considers that such distress and mental illness is not harm which is intentionally inflicted on him by any other person and does not satisfy the definition of significant harm in s.36(2A). The Tribunal finds that there is not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being returned to Vietnam due to him having to leave his wife and daughter’s graves in Australia or due to his mental health.
The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Vietnam, there is a real risk that he will suffer significant harm.
As noted above, the Tribunal is satisfied that, in regards the second applicant, the Tribunal does not have jurisdiction to proceed with the review since the applicant passed away on [Date 2].
For the reasons given above the Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has protection obligations. Therefore, the first applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
There is no suggestion in this case that the first applicant satisfies the criterion set out in s.36(2)(b) or (c).
DECISION
In relation to [the first applicant], the Tribunal affirms the decision not to grant the applicant a protection visa.
In relation to [the second applicant], the Tribunal finds that it does not have jurisdiction in that matter.
Anne Grant
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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