1715980 (Refugee)

1715980 (Refugee) [2019] AATA 1228 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715980
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Denis Dragovic
DATE:14 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 February 2019 at 10:03am
CATCHWORDS

REFUGEE – protection visa – Vietnam – previous conviction for drug offences – risk of prosecution in Vietnam – fear of harm from debt collectors – psychological issues – ill health of mother – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 10 July 2017. There is no evidence before me to suggest otherwise, as such I accept that the applicant is a citizen of Vietnam.
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 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).
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.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims: The applicant claims to fear returning to Vietnam because he was convicted and has served a prison sentence for drug offences [information deleted] and he believes he is at risk of being prosecuted a second time for these offences by the Vietnamese authorities and possibly other offences. He fears harm from debt collectors with links to Vietnam because of a debt that he accrued while gambling at the casino in Australia. In addition, the applicant fears that he will not be able to subsist in Vietnam due to his psychological condition.
The delegate refused to grant the applicant a protection visa on 21 July 2017. The delegate considered that in practice the Vietnamese government does not re-examine returning citizens with criminal records and consequently was not satisfied that the applicant faces a real risk of re-prosecution, imprisonment or the death penalty for his previous criminal offences in Australia. The delegate was satisfied that the applicant would be able to obtain treatment for his conditions and that employment opportunities would be readily available.
The applicant submitted psychologist’s reports relating to his mental health. In a report dated 21 September 2015 the Consultant Forensic Psychologist found that the applicant was suffering from major depression with features of an anxiety disorder. In the 2018 report there is mention but no clear diagnosis of the applicant being highly depressed and anxious and a finding that there is no indication of major psychiatric disturbances. I accept that the applicant is bearing the burden of mental health issues. In preparation for the hearing I consulted with the Tribunal’s Guidelines on Vulnerable Persons, emphasised to the applicant that he can request a break at any time and that he should ask that I rephrase or repeat any questions that I put to him. The applicant was accompanied by his representative throughout the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
At the hearing the applicant, who most recently came to Australia as the holder of a [temporary] visa [in] February 2011, stated that he grew up in [a] small village near Haiphong, the third largest city in Vietnam. It had ricefarms around it, however these were not large. He lived there until he was [age] years old and then moved near the city because his mum acquired land and built a house. He stated that his mum owned a small [business], and it was going well, but it has now ended. He lived at the house his mother built until he was [age] years old. I accept this as fact.
The applicant advised that he has one brother who is married with three children and his brother lives in the house their mother built. His brother runs the family [business]. The applicant stated that he previously managed the [business]. The applicant’s mother, who is ill, and two of his [siblings] live in Australia. The applicant has lost contact with his father. I accept this as fact.
The applicant stated that his work in Australia has included [various occupations]. He confirmed that he worked illegally for a while. I accept this as fact.
The applicant stated that he was sentenced to three and a half years in prison for reason of cultivating cannabis and he had been cultivating for two to three months before he was caught. I asked the applicant if he would seek to cultivate drugs in Vietnam. He said there is no way he would do this because he had learned his lesson by being in prison here. He stated that he has never used drugs. I accept this as fact.
The applicant claims that he has been married since [2014], however there is also a doctor’s note on file suggesting that he is a divorcee (Tribunal f.66). At the hearing I asked the applicant if he is still married. He advised that he is not sure about the current status of his marriage and that since he has been in prison his wife has wanted to get divorced. He said that she visited him during his first three years in prison, the last time being once at the beginning of 2018, and then she stopped. He suspects she stopped because she fears that he will be deported. It was noted that the applicant’s wife was not at the hearing and no-one reached out to tell her about this hearing. The applicant said that he feels that if he is deported then he will stop talking to her, however if he gets to stay in Australia he will call her. He claimed that his wife is still suffering from depression and that she hasn’t found anyone else. The applicant confirmed that she has family in Australia. I find that the applicant is estranged from his wife. Was he to return to Vietnam I find that his relationship would be irredeemable and there would be no ongoing communication.
It was advised that the applicant’s brother in Vietnam consulted two lawyers for written advice on the issue of double jeopardy and both declined due to concerns that they would draw unwanted attention from the authorities. In addition a quote from a Vietnamese legal firm was provided which outlined the scope of potential work that had been discussed (Tribunal ff.203-207). The applicant’s sister said that she spoke to Vietnamese lawyers who told her that their law is bound by nationality and not borders and any crime committed overseas can be tried in Vietnam. I put to them that I require further evidence other than purported verbal advice from lawyers in Vietnam. I gave examples of the type of evidence that would be welcome and provided a deadline of 31 January 2019. None was received. I give this verbal advice little weight relative to country information obtained by the Department and discussed further below.
In a submission to the Tribunal the applicant’s representative submitted that the applicant’s case [is] widely known. It is also submitted that the applicant received further media scrutiny in relation to a case against his [relatives] based upon [relevant legislation] and this gives rise to a further sur place claim for the applicant. Web links to, and extracts from, media articles regarding the applicant’s criminal case were provided and I note that these are readily available and include his full name and specific facts about his circumstances. It is submitted that there is a high likelihood these articles would have been viewed by the Vietnamese authorities and he will be persecuted for his past criminal activities. I accept that the applicant has been referred to in media reports. I also accept that the Vietnamese government would be aware of the applicant’s circumstances due to these media reports.
In his statutory declaration dated 9 June 2017 the applicant claimed that he experienced psychological harm and unfair treatment by the authorities and general government workers and teachers. In particular he said that because he did not pay a bribe to the headmaster at his school he was denied documentation and this led to him being excluded as a dependent from his mother’s Australia partner visa. I asked the applicant if he had faced any other unfair treatment by government authorities. He claimed that when working in Hanoi he was beaten on his head by a co-worker and sometimes he would have trouble with the local government administration making it difficult for him to apply for documents. I accept that these incidents occurred as described.
Following the conclusion of the hearing I provided a summary to the representative identifying key concerns and invited post-hearing submissions, specifically relating to double jeopardy, debt collectors’ reach into Vietnam and the ability of the family to appease the lender’s claims.
A post-hearing submission was received relating only to the issue of double jeopardy.
Considerations
Considerations – Double jeopardy
In his statutory declaration dated 9 June 2017 the applicant declared that [in] 2015 he was sentenced to three and a half years imprisonment with a non-parole period of two and a half years in relation to charges of cultivating a commercial quantity of cannabis, drug trafficking, and [theft]. He further stated that Vietnam has severe penalties for drug-related offences and due to his conviction he is fearful that if returned he will be subjected to the death penalty and imprisonment. It is argued that the media coverage suggests that the applicant is part of a drug syndicate with ties to Vietnam and provides further reason for the Vietnamese authorities to detain and arrest him.
I read to the applicant the following country information:
The principle of double jeopardy applies in Vietnam. The Ministry of Justice had advised DFAT that persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.[1]
Australia deported 380 Vietnamese nationals in 2016-17. Although deportation to Vietnam after conviction for cannabis cultivation is not uncommon, [the Department] did not find any reports of mistreatment on return.[2]
He responded that he knows the facts that were read out but he wants to stay with his ill mother.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report : Vietnam, 21 June 2017, p. 19
[2] Vietnam: CI180723170406324 – Double jeopardy – Drug user – Cannabis cultivation - Return
The applicant’s representative referred to the same DFAT report and argued that the below section explains that the applicant’s case may be revisited by the Vietnamese authorities.
Article 6 of the Penal Code provides that people who have committed offences overseas, where the sentence has not been served, may be ‘examined for penal liability in Vietnam’. MoJ stated that there is no specific list of offences; however, if the offence committed overseas is considered an offence in Vietnam and the person had not served their sentence, they could be ‘examined’ for penal liability on return to Vietnam.
I noted that the above information is not relevant to those who have served their sentence. The representative responded that arising from the evidence of the [applicant’s relatives’] case under [relevant legislation], which is under appeal by the applicant’s family, there may be subsequent civil penalties imposed on the applicant. I put to them that, were further charges to arise and involve a sentence, the applicant would serve out his time in Australia on a criminal justice visa. I put to the representative that in such a circumstance he would have served his sentence and as such there isn’t a circumstance such that he would return without serving his sentence.
The applicant’s sister claimed that the correct interpretation is that her brother would still face prison time as the length of the sentence in Vietnam is different to Australia and as such his sentence in terms of the Vietnamese judicial system has not been served. She claimed that the minimum sentence for any drug offences in Vietnam for a commercial quantity is 15 years whereas in Australia he served three years. I noted that country information they had submitted to the Tribunal indicated otherwise, specifically I read from the Centre for Indonesian Law, Islam and Society report (Tribunal f.106) which has a list of penalties for various drug crimes. I noted that it appeared he would fall under the category of ‘Cultivating opium poppy or other kinds of plant bearing narcotic substances’ and that the first penal scale was six months to three years. The second penal scale is three to seven years. I noted that it wasn’t dissimilar to the sentence he received in Australia. I also paraphrased from page 8 of the document, first paragraph, noting that the Vietnamese government appears not to be as serious as suggested when it comes to drug crimes upon the basis that ‘criminal liability is only imposed on a person who has relapsed and returned to cultivation after being the subject of several non-custodial measures, including official education, financial and technical support for alternative cultivation and the imposition of a fine or a warning. Put another way, a record of administrative sanction is required before such a person will be convicted.’ The applicant responded that since he is in prison he has heard about many people who have been deported but he doesn’t know what happened to them. Now his mother’s time is expiring and his wish is that he spends time here to care for his mother.
The applicant’s sister stated that their brother in Vietnam received enquiries because the applicant had been in the newspapers and this led her to contact a lawyer who said that there is no double jeopardy law and the applicant will be reinvestigated. The applicant’s sister elaborated that her brother living in Vietnam was contacted in 2016. The individuals came to his house asking about the applicant’s location, what he is doing, and when he is returning. Their brother was told that when the applicant returns he needs to come to the nearest police station. She stated that they came three times. On the first occasion two people came, however, she is not sure if they were police or administrative officials – they had epaulettes. The second time also involved a couple of individuals and they were wearing suits. The third time also involved individuals in suits. She advised that her brother called her after the first visit, however, she didn’t tell the applicant anything until after the third visit. She said that her brother may have had more visits, however she has not asked him since, and to her knowledge the last visit was in late 2016 or early 2017.
At the hearing the applicant’s representative argued that a Vietnamese lawyer has to provide insight on this issue. In a submission received by the Tribunal on 14 December 2018 the applicant’s representative repeated that the applicant is at risk of being persecuted again for his drug related criminal offences despite already completing his sentence in Australia. It was submitted that to conclude that the double jeopardy principle applies in Vietnam is to ignore the practical reality.
I discussed country information that covers how people upon return are viewed with suspicion and have trouble finding work, but none are re-tried.[3] The applicant had no response.
[3] ‘No job, no money: Life in Vietnam for immigrants deported by the US’, Reuters, 20 April 2018, CXBB8A1DA32767; ‘Trump’s immigration crackdown hits Vietnam’, Politico, 14 August 2017, CXC90406621131; Harm Reduction Journal ‘publishes research focusing on the prevalent patterns of psychoactive drug use’; ‘The green house next door’, Australian Broadcasting Corporation (ABC): 7.30, 2 July 2018, CXBB8A1DA32803; ‘Britain’s ‘blood cannabis’ shame’, Asia Times, 20 March 2017, CXBB8A1DA32823
In a post-hearing submission it was argued that the Vietnamese Criminal Code identifies criminal acts as being those inside and outside the territory of Vietnam. As such it was argued that the applicant could be re-tried. I note that the issue isn’t the jurisdiction but rather the principle of double jeopardy. The submission added a further element questioning the independence of the judiciary. Country information was provided that the judiciary are ‘effectively controlled by the Communist Party of Vietnam’, ‘police investigations are opaque and abuse of process is reportedly widespread.’ The information included that the influence of the Communist Party was particularly notable in high profile cases. A final piece of country information regarding the Australian government’s boat turn back policy was said to exhibit evidence of how the Vietnamese government engages in conduct that goes against its official announcements.

While I acknowledge that the Communist Party is influential in appointing judges and that the judiciary is influenced by it, it does not shed light on why the Communist Party would be interested in the applicant. Similarly, country information suggesting that the judiciary is open to influence in high profile cases doesn’t explain why the applicant’s situation would be high profile. Quite on the contrary, as discussed above it appears that the Vietnamese government gives considerable leeway when it comes to drug crimes beginning with administrative penalties, education, etc. The fact that the applicant appeared in Australian media does not make his situation a reason for the Communist Party, police or judiciary to create a new high profile case in Vietnam by charging him again for reasons related to his specific conviction or a perception of being associated with a drug syndicate.
As for the boat turn backs article, I note that the specific circumstances of that case are that the applicants were charged with trafficking (‘organizing for others to flee abroad illegally’ as the article notes) and not departing Vietnam illegally. This is very different and I find not to be indicative of what the representative claimed, namely that it is an example of the Vietnamese government going against its own stated policy.
In a submission received by the Tribunal on 4 December 2018 the applicant’s representative submitted that the applicant will need to approach the Vietnamese authorities to renew his passport, making him the subject of additional scrutiny. At the hearing the applicant’s sister advised that she tried to renew the applicant’s passport. She made enquiries with the embassy and was asked a lot of questions about the applicant, including what he has been doing and what visa he has in Australia. She mentioned to the embassy that he is in a detention centre and that he has a conviction. In response she was told that she can’t renew the applicant’s passport, but the Department will do it. I put to her that this appears normal. No additional information was provided to suggest that it is not routine.
The Tribunal was informed that it is not just charges that the applicant is worried about, but the wealth he is perceived to have. He fears that he will be susceptible to extortion because of a perception of his wealth.
In a submission to the Tribunal the applicant’s representative submitted in relation to complementary protection that people involved in drug-related offences face risks of extra-judicial punishment, torture, detention, and death, making the applicant at risk of significant harm should he return to Vietnam. I acknowledge that extra judicial killings and police abuse occurs in Vietnam, but questioned the applicant as to why this would occur to him and why he would be targeted by the state. I asked the applicant if there was a reason to believe that he would be particularly targeted in a situation where a state authority or someone else would want to take the law into their own hands. He responded no. There is no evidence of the applicant being targeted, no information was provided or could be found[4] to suggest that drug producers are targeted extra-judicially and the applicant has stated that there is no reason why he would be targeted. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from extra-judicial actions.
[4] Searches were undertaken through CISNET, Google and Refworld
The representative outlined the complex circumstances by which the applicant found himself in Australia. She was concerned that it would be potentially prejudicial that the limited information available to the Tribunal may lead to an adverse view that he was unlawful. Instead, he was meant to be a permanent resident but because of certain circumstances which have been described as a lack of procedural fairness he was unable to proceed. I acknowledge this background which was evident in the files available to the Tribunal. I requested that any relevant files be submitted but otherwise suggested that the background is peripheral as it does not answer the question of whether the applicant faces a well-founded fear of persecution or a real risk of significant harm as a necessary and foreseeable consequence of removal.
I asked the applicant if there is a reason to believe that, if he were required to report regularly to authorities, it would cause particular difficulty to him. He responded that he suffers from depression. No other reason was given.
I note that the fact his family has been visited in Vietnam does not infer that it is for the reason of retrying him. I said that it is not surprising that officials have asked about him. I note that the evidence that was discussed with the applicant (footnote 3) reported on others returning who had to report regularly, had trouble finding work and are considered suspicious but none were re-tried. The evidence before the tribunal taken in its entirety suggests that protections under the principle of double jeopardy are adhered to in Vietnamese law and the Vietnamese government would not re-try the applicant. He may face administrative penalties such as being required to report regularly, he may face social challenges from employers and society may consider him suspicious. Nevertheless, I find that such challenges would not amount to serious or significant harm as the applicant can receive support from his brother, he has relevant experience in Vietnam and he has shown a capacity to find work even considering his psychological challenges.
I have also considered whether members of the community or officials would target him for reasons of perceived wealth. In doing so I note that the applicant, if he were to return, would not have a substantial amount of money. He would not be able to live a high profile life and he would not be differentiated from the rest of Vietnamese society. As such the question becomes whether people he interacts with would know of his background. Local community members including local authorities and police would know based on media reporting and gossip, but they would also know that he spent time in prison and was deprived of any money he had. Furthermore, they would see that he was not living a high life upon his return. I find that he would not face a real chance of serious harm or a real risk of significant harm arising from possible extortion attempts.
Considerations – Subsistence in Vietnam
In his statutory declaration dated 9 June 2017 the applicant stated that he fears being unable to find gainful employment or subsistence in Vietnam due to his psychological condition which will worsen if he returns. In support of this claim the applicant provided two psychological assessments and reports about his mental health [dated] 21 September 2015 and 15 November 2018. The most recent report being relevant to the current circumstances of the applicant provides considerable subjective findings related to the responsibilities of this Tribunal rather than to the applicant’s mental health as would be expected of a medical professional. There is mention of the applicant being highly depressed and anxious and a finding that there is no indication of major psychiatric disturbances. I accept this.
In a submission to the Tribunal the applicant’s representative wrote that it should be considered that the applicant’s psychological condition will worsen if he returns to Vietnam, outweighing the benefit of any potential treatment available. It is argued that the applicant’s anxiety and depression will be exacerbated by his departure from Australia because he will be separated from his family who are his primary and only source of emotional support, and that his distress is compounded by his mother’s diagnosis of [a medical condition].
No evidence was provided that supported this view. The psychologist’s report does not make this conclusion. It only refers to the applicant receiving the level of support and treatment that he enjoys in Australia as ‘remote’.
The applicant said that he’ll feel guilt for the actions he undertook that led to his separation from his mother during her final months of life. He said that in Vietnam he will not have a psychologist. I put to him that there are private psychologists.[5] He said that he doesn’t know about it now but there didn’t used to be, he added that back then the mental hospital was popular. The applicant said that when his mother dies his mental health will deteriorate. I accept that he won’t receive the same level of treatment, but that is not the test. I note that the applicant has extended family in Vietnam from whom he can receive psychological and social support. While I accept that any forced departure can add to levels of anxiety and depression I do not accept that deportation or a death in the family or his personal guilt would exacerbate his condition such that when in Vietnam he would face a real chance of serious harm or a real risk of significant harm.
[5] Professor Dr Sc. Pham Minh Hac and Professor Dr Do Long, Psychology in Vietnam, accessed 6 February 2019
On Form 866C the applicant claimed to fear violence, harassment and social exclusion in Vietnam. He claimed there is stigma attached to drug-related offences in Vietnam and this is a further reason he will be unable to find employment. I asked the applicant if he can work with his brother in the [business] again. The applicant said that he is not sure as it has been a long time since he worked with his brother. He is married with children so he doesn’t know.
I put to the applicant that he had claimed to have major depression with features of anxiety disorder as a result of his childhood and despite that he was able to find work in Vietnam and Australia. The applicant agreed, noting that there is a gene related to the suffering of depression. I put to the applicant that he was able to work for six years in Vietnam with what he claimed to be depression and asked why it would be a problem were he to return. The applicant said that he would try to work again.
I put to the applicant that Vietnam has a growth rate that is one of the fastest in the world.[6] I also told him that the unemployment rate has reduced to 2% in the third quarter of 2017. I put to him that he would be able to find work there. The applicant said that he is not sure about the facts now, however before it was hard to find work.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report: Vietnam, 21 June 2017 at [2.8]
I read to him from the DFAT report at [2.17]: ‘Vietnam introduced new minimum wage standards effective 1 January 2017. There are four regional minimum wages currently ranging from VND2.58 million to VND3.76 million (AUD153 – 224) per month.’ The applicant had no comment other than acknowledging the information.
I find that the applicant will be able to find employment such that he will be able to subsist despite there being local knowledge of his past conviction.
I find that the applicant will be able to find work and maintain work despite his past and present mental health challenges. I find that being able to work and having support from his brother will help him deal with any harassment and social exclusion that may arise from knowledge by the community of his drug offences such that he would not face a real chance of serious harm or a real risk of significant harm arising from these factors. Based upon country information discussed with the applicant I find that there is a remote chance that he will face violence related to having being convicted for drug offences and as such I find that he will not face a real chance of serious harm or a real risk of significant harm.
I accepted that the applicant has had problems in the form of having to bribe a headmaster to get a document, being beaten on his head by a co-worker and sometimes having trouble with the local government administration making it difficult for him to apply for documents. I find that bribery to access documents will recur were he to return, while the incident of a fight with a co-worker is not indicative of the future and as such find that there is not a real chance or a real risk that it will recur in the reasonably foreseeable future.
As noted above I accept that the applicant may at times need to bribe officials to access documents. Corruption is a problem and is common in Vietnam as the applicant’s experiences show and as DFAT has reported.[7] As I have found that the applicant will be able to obtain work, I find that were any intermittent need to arise for the applicant to bribe an official to obtain basic personal documents he will have the resources and ability to do so. I have considered whether such an imposition would reach the level of serious or significant harm. I note that even were it to, giving the applicant the benefit of the doubt, there is no basis upon which to assume that it would be systematic and discriminatory as per s.5J(4)(c) or that it doesn’t apply to the population of the country generally as per s.36(2B)(c). As such I find that the applicant does not have a well-founded fear of persecution or a real risk of significant harm arising from the prevalence of corruption in Vietnam.
Considerations – Failed asylum seeker and the Vietnamese government
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report: Vietnam, 21 June 2017 at [2.10 and 5.30]
I read to the applicant the following information:
Article 91 of the Penal Code 1999 states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is an offence. However, DFAT is unaware of any cases where this provision has been used against failed asylum seekers. In December 2016, a new Memorandum of Understanding (MOU) was signed between the Australian Department of Immigration and Border Protection and Vietnam's Ministry of Public Security, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia’.[8]
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report: Vietnam, 21 June 2017 at [5.15]
I put to him that it seems that the Vietnamese government wouldn’t have a reason to use this provision against him as he has not departed Vietnam for the purpose of opposing the people’s administration. The applicant responded that if anyone can give a guarantee that he won’t be persecuted by government, then he would return. He added that if the Australian government is willing to deport him then there is nothing that he can do. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from being a failed asylum seeker.
Considerations – Threat from debt collector
At the hearing the applicant claimed to fear harm from debt collectors. He stated that he owes more than [amount] and the debt collector has threatened his wife and sister. He said that the debt collector is rich and has connections in Vietnam. He claimed that the Australian police have intercepted phone calls and know of the threats.
I informed the applicant that as there are ongoing court proceedings anything he had to say could be used against him or his family and as such he had the right not to answer the questions. In consultation with the applicant’s representative we decided that I would ask the questions and before answering them the representative would provide advice on whether the question should be answered. We proceeded with this approach without objections or any problems arising.
The applicant claimed that the man who lent him the money is not in prison. He said he heard that the lender is part of an underworld syndicate in [Australia]. He claimed that the person who is threatening him travels regularly to Vietnam and he heard someone say that he has family in Vietnam. He claimed that many people have told him that his lender has friends and a network in Vietnam, in particular that they belong to some mob/underworld gang in Vietnam.
I asked whether he had any evidence that the lender could harm him in Vietnam. The applicant claimed that while he was in prison his lender investigated him and found his sister’s home in Australia, following which they came and damaged his sister’s property and his wife’s house, and he heard that they brought guns with them. No evidence was provided relative to his possible reach into Vietnam.
The applicant’s claims that the Australian money lender would pursue him and harm him in Vietnam are speculative. There is little evidence that the money lender has an effective reach into Vietnam amounting simply to the applicant being told as such by some people. That the money lender pursued the applicant’s family when the applicant was detained infers that he has knowledge of the details of his client’s circumstances. It is also reasonable to assume that he would have the capacity, through the Vietnamese community or legal avenues, to track the applicant’s legal and immigration circumstances. As such I find that he would know if the applicant had been deported along with the outcome of the appeal over the [goods]. [Details deleted]. Under these circumstances I find that the money lender would not pursue the applicant in Vietnam for the reason that it would not reap any benefit. The money needed to be repaid would best be achieved through pressure being placed on the applicant’s sister and mother who have access to Australian income, Australian relatives and Australian financing, a fact that the applicant and his sister clearly articulated in the evidence provided relating to having borrowed considerable amounts of money from various sources. [Details deleted]. As such I find that were the applicant to return to Vietnam he would not face a real chance of serious harm or a real risk of significant harm.
The applicant explained how he came about having a [amount] debt. He claimed that he borrowed the money because he had started gambling in [a] Casino, then he suddenly won a big prize and he increased the amount he was gambling. He won nearly [amount] in one day. He explained that the original money came from the money that he brought with him when visiting Australia which he claims amounted to [amount]. The first time he brought about [amount] to spend in the Casino. Every day he would bring [amount] to spend in the Casino, if he won he would bring the money home and if he lost he went home. Sometimes he would win up to [amount] in the Casino. In July 2013 he brought with him some money and kept betting on the [table] and he kept winning. That day he won nearly [amount]. He stated that he transferred the money to his sister because he was afraid that he would lose it again. On many days he would lose [amount]. I asked if he had ever won [amount] on another day. The applicant said no, only [amount].
I noted that the [article] submitted by the applicant’s representative (Tribunal f.70) suggested that the money he was betting was not from winnings but money being laundered. His representative explained that the charges are from [October] 2014 and [March] 2015 being the period he was under surveillance whereas his winnings were from 2013 inferring that the money could not be ill gained but rather was won as told to the Tribunal. I responded that it could be that the police chose to pursue the matter only for that period for a variety of reasons but that alone does not infer that anything he earned prior to that period was clean.
In response the applicant stated that he only met the man who introduced him to drug cultivation at the end of 2014. The applicant was arrested by police in [2015] and was immediately placed in remand. The applicant’s sister added that the police were surveilling the man who lent the applicant money, hence the applicant got caught up in the process, and this was put to the court during the applicant’s hearing.

I accept that the applicant only met the man at the end of 2014 but this doesn’t lead to a conclusion that he was not involved in other illegal activities before. The [report], provided by the representative, summarises the outcome of the case [against] the [applicant’s relatives]. [Details deleted].
I asked the applicant why he borrowed the money. He claimed that he gave [amount] to his sister in 2013 and he continued to gamble with about [amount] that he had left. Many people knew that he was a big winner from before, so he resumed betting and chose to borrow money from two of those people. One person lent him [amount]. The other lent him more but in instalments on numerous occasions of [amount] each time. Collectively he now owes [amount]. He stated that when he won he would return the money and when he lost he would borrow again. He said that he owes money to both lenders.
I asked the applicant if he has asked his sister to give [amount] to him to repay the debt. The applicant replied that she had bought a [business] and she has no cash. Sometimes, when he loses a certain amount, she pays. He explained that she sees these payments as interest on the [amount] that she is using. The applicant said that when his debt reached [amount] he decided to run away from the lender.
I asked the applicant why he doesn’t ask his sister to sell the [business]. He responded that selling the shop is not easy and the interest from the lender is too high to pay. He claimed that for every [amount] he has to pay [amount] per week. I put to him that he could sell her shop for half the amount required and he would be safe. He said that he doesn’t want to make a loss on it.
I put to him that he is claiming to fear being killed in Vietnam, yet he is saying that he doesn’t want to lose money. He said that he really wants to sell the [business] but he can’t. I put to him that he could give the lender the title to the shop. He said that he does not have a right to sell his sister’s property.
The representative submitted that the property can’t be sold because there are serious issues with it, [information deleted]. The sale contract did disclose all of the issues but because the applicant’s sister didn’t go through conveyancers she wasn’t aware of the risk. Now they no longer own the [business]. The sister continues to run the business [information deleted].
Later during the hearing the applicant claimed that his sister didn’t sell her property earlier because she didn’t know about the loan. He didn’t tell her about the situation, only that he needed the money, and she thought he wanted it for gambling and not to pay off a loan. She only later realised it was a serious problem in late 2014 when they came after her with threats. She thought of selling the business, however she was investing in the business at the time, and having to pay the loan and keep up with the interest was difficult. Then she had to work to gather the money for the applicant’s legal fees. The applicant’s sister added that their mother owes about [amount] in mortgage payments along with funds borrowed from in-laws who have re-mortgaged their homes.
We discussed the possibilities that could eventuate following the outcome of the current case against [applicant’s relatives]. There are two possibilities:
a.[Details deleted]. She owes [amount]; has credit card loans of [amount]; and a personal debt to in-laws of [amount]. Applicant can [dispose] of the property and repay the debts. It was claimed that this pathway would not lead to any equity remaining; I am not convinced based upon the financial figures provided that there would not be any equity.
b.[Details deleted]. The applicant will continue to have the [amount] debt from the money lenders with an inability to repay it. The money lender will continue to pursue repayment.
The representative added that the applicant faces further risks from the Vietnamese government based upon questions over where he got the [amount] that he brought to Australia. At the time he was working [for] four or five years as well as [another occupation]. He was the ‘operator’ of the [business] when he was in Vietnam. The applicant told the Tribunal that he had paid all of his taxes. He said that he changed the money in Vietnam and brought it to Australia in AUD. He wasn’t sure if the exchange process was legal or not. I asked for a post hearing submission on the Vietnamese laws for taking funds out of the country. No submission was received. Based upon the applicant’s evidence that he paid all of his taxes and converted the money in Vietnam, and no evidence being submitted that it was against the law to take out such an amount and no evidence being found by the Tribunal to support such a view, I dismiss this claim finding that there is no basis for it.
Ministerial Intervention
In his statutory declaration dated 9 June 2017 the applicant stated that his mother was diagnosed with [medical condition] in July 2015. Over the course of the review the Tribunal received various medical documents concerning the applicant’s mother’s health. The documents explain that she has been diagnosed with incurable [medical condition] and is receiving palliative care, and include the various treatments and tests that she has undertaken. It was advised on multiple occasions that the applicant’s presence is essential to providing physical, emotional and mental care to his mother. Most recently a letter by [a medical centre] dated 5 November 2018 states that the applicant’s mother is receiving [treatment], resulting in [various medical conditions], and her prognosis is less than 12 to 18 months.
At the hearing a request was made for Ministerial Intervention. This was followed by a submission received on 14 December 2018 in which the applicant’s representative requested that a recommendation be made that the Minister grant a substituted [temporary] visa to allow the applicant to remain in Australia and not in detention while awaiting the outcome of his review. In light of the applicant’s mother’s diagnosis with [medical condition], it was submitted that there are compelling and compassionate grounds for Ministerial Intervention. It is advised that the applicant’s family is willing and able to put up a house or business as surety for the applicant’s departure. In addition the applicant had undertaken vocational training since his incarceration.
I have consulted the Minister’s guidelines on ministerial powers. I note that they state the minister ‘will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful non-citizen.’ Based upon this guidance the applicant’s circumstances will be viewed particularly unfavourably having been illegal for a period and convicted of drug trafficking. While I acknowledge the applicant’s family situation, based upon the guidance provided I do not endorse the request for referral to the Minister.
I have also considered whether the Vietnamese government will have a basis upon which to lay other charges. Considering that the evidence upon which the charges laid against the applicant have been considered by the courts in Australia and acknowledging the representative’s claims that further charges may arise and under such circumstances the applicant would be placed on a criminal justice visa I find that the Australian government will have exhausted all possible avenues for prosecution. In that case the Vietnamese government would not have a basis upon which to seek further prosecution as the principle of double jeopardy would apply. In reviewing the Vietnamese Criminal Code provided by the representative in full, there is no evidence that the applicant will face any other charges. No submission was made by the representative on what type of additional charges he may face.
Cumulative
I have considered the applicant’s claims and above findings cumulatively including that he has been convicted in [Australia], has sought asylum, has mental health challenges, will face a degree of social exclusion, in some instances may need to bribe officials to access documents and owes money to money lenders. I have considered various permutations on whether any claim could exacerbate another such that cumulatively it reaches a real chance of serious harm or a real risk of significant harm and find that none would cumulatively raise the level of risk or harm to a real chance of serious harm or a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Senior 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.
…

[2019] AATA 1228

14 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice