1710937 (Refugee)

[2019] AATA 6114

1710937 (Refugee) [2019] AATA 6114 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710937

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Nicole Burns

DATE:3 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 September 2019 at 10:33am

CATCHWORDS        

REFUGEE – protection visa – Vietnam – loan for wife’s uncle to use as security bond for previous visa – overstay and forfeiture of bond – paying interest but not principal – fear of harm from gangsters hired by lenders – vague and contradictory evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Vietnam, applied for the visas on 11 December 2015. The delegate refused to grant the visas on the 5 May 2017.

3. The applicants appeared before the Tribunal on 2 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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 themself 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).

7. 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.  

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicants are a [age] year old man from Hue, Vietnam, his wife who is also from Hue, and their two [children] who were born in Australia, in [year] and [year] according to copies of their birth certificates provided.  At the Tribunal hearing the first named applicant advised that he has another [child] who was born in Vietnam in [year] and lives with his wife’s parents in Hue. 

11. The first and second named applicants confirmed at hearing that the second named applicant does not have her own protection claims: she relies on her husband’s case, as a member of his family unit (along with their [children]). 

12. The first named applicant (hereafter the applicant) presented his initial claims for protection in his visa application on 11 December 2015 as follows,

    Why did you leave that country(s)?

    I left my own country because distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distruction -of the global economy impact on the nations economy. Poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Vietnam have problem like me, who borrowed money had been hit, injured and killed.

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

    If I return to my country, I will get caught by creditor and could be beaten, injured or killed. They will searching me.

    Did you experience harm in that country(s)?

    Yes I already experience harm in that country because I already received verbal threatened from them to hurting me. Besides that, I live in hardship (because the bad economy).

    Did you seek help within the country(s) after the harm?

    Yes but nothing happen because this is a matter of economy of the country (they consider as a personal problem).

    Did you move, or try to move, to another part of that country(s) to seek safety?

    I did not try to move to another part of the country because this is a matter of socio-economic. I will experience the same problem even move to another places (inside that country).

    Do you think you will be harmed or mistreated if you return to that country(s)?

    Yes I will live in harsh conditons, suffered discrimination for Taiwanese women.

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

    No because the authorities could not protect me because this is a matter of socio-economic. I will experience the same problem.

    Do you think you would be able to relocate within that country(s)?

    No, unable to relocate because this is a matter of socio-economic. I will experience the same problem.

    [Errors in original]

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

14. The first and second named applicants travelled to Australia on a valid Vietnamese passports and stated that they are Vietnamese nationals.  The delegate had no concerns about their identity and claimed nationality.  Therefore the Tribunal has assessed the applicant’s claims against Vietnam as his receiving country.

15. At the Tribunal hearing the applicant said around a month before him and his wife left Vietnam in March 2010 he borrowed AUD [amount] from some neighbours and relatives for his wife’s uncle – who resides in Australia – to use as a security bond for their visitor visa applications.  They overstayed in Australia and forfeited the bond.  Over the years he has managed to pay the interest on the loan – AUD [amount] per month – but none of the actual loan. He says this is because although he works - as does his wife (part time) - they only usually make enough to cover living costs in Australia.  He said he fears he will be harmed by gangsters – hired by the people he loaned money from – if he returns to Vietnam and does not pay back the loan.  He said he has received threats via his mother-in-law and his father in Vietnam from some of the people he owes money to in the past, specifically three men called [Mr A], [Mr B], and [Mr C] who actually have their own money lending business.  These threats occurred around three years ago.  Before the applicant left Vietnam he said [Mr A] sent a gangster to warn him that he will be killed if he does not go to Australia, work and repay the money.

16. The Tribunal has a number of concerns about the applicant’s core claims to fear persecution on return to Vietnam from individuals who he claims to have borrowed money from and is unable to repay for the following reasons.

17. First, aspects of the applicant’s oral evidence about the loan arrangements and expectations were vague.  For example whilst he identified the total loan amount (AUD [amount]), the interest (AUD [amount] per month) and the total number of people he borrowed the money from (10), he was unable to identify the amounts he borrowed from specific individuals, or explain what the agreed plan was with each individual for him to repay the loan, such as over what time period.  When pressed on this matter, the applicant’s evidence was vague and internally contradictory.  For example on the one hand he said that his agreement with each of the individuals is that he will pay back money whenever he can afford to and when asked if any of them have asked him to do so – noting it has been over 9 years and he has only paid back interest – the applicant replied ‘no one yet’.  However on the other hand he claimed to have received threats via his mother-in-law and father in Vietnam around three years ago that if he does not repay the loan they will send gangsters who may harm him.    

18. Second, the applicant claims he cannot return to Vietnam because of this outstanding loan yet he has not paid back any of the loan (apart from servicing the interest) in almost a decade working in Australia.  This indicates to the Tribunal that he does not see it as a priority, which undermines his claims to fear persecution due to his alleged inability to repay the loan.  The applicant provided to the Tribunal a letter from his current employer which indicates that he has been working full time as [an occupation] since November 2016 and at hearing the applicant said he worked prior to that as [an occupation] (for cash) and on farms.  In addition his wife has worked in [workplaces] in Australia, and currently works part time.  When asked why he has failed to repay the loan, the applicant said because his income here is only enough for day-to-day living.  The Tribunal is not persuaded by this explanation, noting that the applicant works full time, his wife works part time and on the applicant’s own oral evidence he sends money back to Vietnam to his parents-in-law and his father on occasion which indicates he has more financial capacity than he claims. 

19. Third, the reasons posited for why the applicant borrowed money in his application form (and from whom) are different to what he told the Tribunal. That is in his application form he states that he had to borrow money from his relatives due to harsh living conditions however at hearing he said he borrowed the money to pay for the security bond to secure a visitor visa to Australia from neighbours.  When asked if he also borrowed that money from relatives, he said ‘yes’ but did not provide any more details.  The Tribunal also notes the applicant states in his application form that he borrowed money from relatives, but at hearing his evidence in this respect grew to include neighbours, relatives and money lenders (that is [Mr A], [Mr B], and [Mr C]).

20. For these reasons the Tribunal has concerns about the applicant’s core claims to fear harm at the hands of ten individuals whom he allegedly borrowed money from on return to Vietnam.  The Tribunal does not accept that he borrowed AUD [amount] from them in early 2010 and it follows that the Tribunal does not accept that he was threatened – directly or indirectly – by any of those individuals, including by [Mr A], [Mr B], and [Mr C] – either before he left Vietnam or after, given he had failed to repay any of the money (apart from interest).   The Tribunal finds the applicant does not face a real chance of serious harm from these 10 individuals for any reason on return to Vietnam now or in the reasonably foreseeable future.  His fears of persecution on this basis are not well founded. 

21. At hearing and in the application form the applicant also claims that he will suffer hardship on return to Vietnam because it will be difficult to get a job, and he will not be able to financially support his family.  He made reference to high unemployment in Vietnam, among other things, and the Tribunal notes he made reference to poverty in Vietnam in his application form.  The Tribunal accepts the applicant is concerned about how he will manage financially on return to Vietnam, particularly given the length of time he has been away and the fact that he will be returning with two young [children].  However, he told the Tribunal that he finished high school then worked in Vietnam for many years, also as a truck driver, as did his wife (also in a nail salon there).  He did not indicate that he was ever prevented from obtaining work for any reason.  He also has family members in Vietnam, including three brothers who work, who could help him and his family out at least initially on their return whilst he looks for work.  According to his oral evidence to the Tribunal the applicant’s father owns property, including a house in Hue where the applicant used to live and where one of his brothers’s currently reside.  Given these considerations the Tribunal does not accept that the applicant faces a real chance of serious harm on return to Vietnam such as significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, as contemplated by s.5J of the Act. 

22. At hearing the applicant also said he wants his [children] – who were born here – to have a future in Australia, to be educated here, and asked that he be given a visa to work here.  He added that he pays tax and the company he works for considers he is a hard worker.  He provided a letter from his current employer and a copy of his tax assessment notice.  The Tribunal has no reason to doubt that he works hard and is a valuable employee, and understands why he wants to stay in Australia, in particular for his [children’s] education and future opportunities.  However, as explained at hearing, these considerations are not relevant when assessing whether or not Australia has protection obligations with respect to the applicants, in Vietnam.

23. The Tribunal also notes in the application form in response to a question about whether he thinks he will be harmed or mistreated if he returns to Vietnam the applicant states: ‘Yes I will live in harsh conditions, suffered discrimination for [Country 1] women’.  At hearing the applicant did not know why the reference to [Country 1] women was in the application form and noted an [Country 2] friend helped him complete the form at the time.  The Tribunal considers it likely that this was a mistake made at the application stage and not a claim, given neither the applicant nor his wife are [Country 1] women. 

24. Given these findings the Tribunal does not accept that if the applicant returns to Vietnam he will face a real chance of persecution from individuals who have lent him money or anyone associated with them, or in terms of facing significant economic hardship.  The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

25. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Vietnam, there is a real risk that the applicant will suffer significant harm from individuals who have lent him money or anyone associated with them, or in terms of facing significant economic hardship. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    CONCLUSION

27. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants protection visas.

    Nicole Burns
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …