1716821 (Refugee)

[2022] AATA 1774

1716821 (Refugee) [2022] AATA 1774 (29 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716821

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jessica Henderson

DATE:29 April 2022

PLACE OF DECISION:  Perth

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

Statement made on 29 April 2022 at 9:25am

CATCHWORDS

REFUGEE – protection visa – Vietnam – ongoing financial property dispute – fear of harm from hired gangsters – passport stolen – inadequate protection from authorities – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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 and Border Protection on 21 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The Tribunal initially listed this matter for hearing on 13 January 2022.  The applicants were invited to attend the hearing on that date by letter dated 10 December 2021. 

3.    On 5 January 2022 the Tribunal received a request to postpone the hearing.  The request stated that the applicants did not have either a copy of their original protection visa applications or a copy of their protection visa interviews. 

4.    The Tribunal declined the request to postpone the hearing on the basis that the applicants had lodged their application for review on 2 August 2017 and had a significant period of time in which to gather evidence on which they thought they might need to rely at the hearing. The Tribunal provided the applicants with a copy of their protection visa applications, but not their interview recordings; the Tribunal had not itself, at that stage, received the audio recording from the Department.

5.    The Tribunal received the audio recording of the Department interview on 13 January 2022 and listened to it prior to the commencement of the hearing.  The issues that it raised were sufficiently extensive that as a matter of procedural fairness the Tribunal informed the applicants that the discrepancy between the claims made by the applicants during the interview and the claims made at other times by the applicants might be a reason or part of a reason why the decisions under review might be affirmed by the Tribunal.  The applicants were invited by the Tribunal to comment orally at a later hearing or in writing prior to it. 

6.    The Tribunal adjourned the hearing for 7 days to allow the applicants time to listen to the audio record of interview and prepare comments.  The Tribunal accepted that 7 days might not be sufficient time and invited the applicants to let the Tribunal know if, on hearing the audio recording, they thought that more time was required in which to respond.

7.    On 18 January 2022 the applicant’s representative contacted the Tribunal and confirmed that the applicants had received the audio recording and were prepared to proceed with the hearing listed on 20 January 2022.  The Tribunal heard evidence from the primary applicant on that date but ran out of time to hear from other available witnesses, including the primary applicant’s wife.  The Tribunal invited the applicants to confirm in writing whether they sought a further hearing for additional evidence to be adduced.

8.    By letter dated 27 January 2022 the applicants confirmed that they did not seek a further hearing.  By the same letter they provided submissions and photographs said to be injuries sustained by the primary applicant’s father.

9.    The applicants were represented in relation to the review and at both hearings by Ms[A], a solicitor at [law firm deleted].

BACKGROUND AND CLAIMS

1. The primary applicant applied for protection on 26 August 2015 (PV Application).

2. The PV Application set out the following basis for seeking protection:

   Returning to Vietnam now would put a significant amount of risk and harm to me and my family. Specially when my wife just gave birth to our son [name redacted] on the [date redacted]. In order to support me and my wife in Australia, my parents have sold many of their properties to pay for our living expenditures and my school fees. The developer who brought my parents’ properties can not obtain permit to build, so they forced my parents to buy back their land. When my parents refused to buy their land, they used gangsters and thugs to intimidate and harm my family. My parents were forced to sell other properties to buy these lands. After a short time the developer demanded compensation for the lost of time and money for buying my parents’ land.  When my parents refused to pay, they physically abused my family and sent people to Australia to harm me and my wife to intimidate my parents. I stopped attending school because they had people going to my school looking for me. My wife and I had to constantly moved around to avoided being captured. In early May 2010, they found us and took our passport, which is why we couldn’t renew our visa. We are too freightened (sic) to return to Vietnam because we know we would be harm (sic) and mistreated. Our lives would be used to intimidate my parents for their gain.[1]

   [1] PV Application question 91 response.

3. It went on to say:

   There is no doubt in my mind that I would not be safe returning to Vietnam. Not only myself but My (sic) wife and my son would be harmed and mistreated as an attend (sic) to force my parents to pay them more money. Money in which my parents do not have.[2]

   [2] PV Application question 95 response.

4. On 15 June 2017 the applicants attended a protection visa interview. At that interview the delegate asked them if they wanted to change anything in their original protection visa application.  The primary applicant indicated that he did not recall the content of his original protection visa application.

5. The primary applicant then told the delegate that his reason for not returning to Vietnam was that he would have trouble finding a job or a home. He also mentioned the superior education that his children would receive in Australia.  He went on to state that he would be investigated by the police if he returned to Vietnam because of a fight that he got into with some friends before he left his home country, which the police were investigating.  When the delegate indicated that she would be interviewing the primary applicant’s wife, herself an applicant, the primary applicant emphasised that she would not know the story of the fight and the police investigation because it had happened before he met her. 

6. Neither applicant mentioned the property dispute during their interview, in spite of multiple opportunities to do so.

7. The Tribunal received a letter from the applicants’ agent dated 7 January 2022, attaching items (a) – (m).  Item (a) was a statement by the primary applicant signed on 6 January 2022 (2022 Statement), including the following relevant details about his family:

   a.His parents are [name deleted];

   b.He has 4 siblings living in Vietnam and 1 living in [country deleted];

   c.He is in contact with his parents 5-7 times per year.  He limits his telephone conversations with his parents because he feels that they start to worry about him and his family when he speaks to them, and he does not want to upset them.

8. The 2022 Statement set out the primary applicant’s immigration history in the following terms:

   a.The primary applicant was unemployed after graduating from high school and was dependent on his parents.  He did not complete any Tertiary studies in Vietnam.

   b.In 2008 one of the primary applicant’s ‘long-distance relatives’ returned to Vietnam from Australia. He told the primary applicant and his wife about visa study options and invited them to stay in his rental property in Australia. 

   c.The primary applicant’s parents paid for his studies using funds from the sale of their property. The first year course cost $17,000, including the costs of repeated units in ‘a third trimester’.

   d.He and his wife arrived in Australia [in late] 2008 on a subclass 573 Student visa.  The visa was arranged by professional migration services in Vietnam which were arranged and paid for by the primary applicant’s parents; he had no direct contact with the migration professionals.

   e.For the first 6 months they lived with the ‘long-distance relative’ at his property in Perth, WA.

   f.From February 2009 to May 2010 the primary applicant completed three terms of an English course.  He was then ‘forced’ to cease studying ‘due to financial, psychological and emotional impacts arising from a property dispute’ involving his parents in Vietnam and ‘ongoing threats from hired criminals/gangsters by the other party in the dispute.’

   g.The primary reason for stopping his studies was the ongoing costs.

   h.The primary applicant says that in “May 2010” he was visited “at the farm [he] was residing at in Perth”. They “demanded the money [his] parents owed be paid and then stole [their] passports.”  He says that he and his wife had to “move around afterwards for fear of being targeted”.

   i.His student visa expired on 15 March 2012.  He did not apply for a new visa before this date because he says he did not know of any options and was “apprehensive” about approaching authorities for help given his limited English and missing passport.

9. The primary applicant enlarged on the property dispute in his 2022 Statement in the following terms:

   a.His parents owned land ‘outright’ in Vietnam.

   b.In February 2008 they sold their land for 1500 million dong, being approximately $91,000 AUD, to a person that the Tribunal will refer to as the Purchaser.

   c.They did not use an estate agent or professional.

   d.The Purchaser was known to the applicant’s parents because they lived in the same neighbourhood.  They signed a simple agreement for the transfer of title to the land.  There was no official contract of sale of land for the purchase.  The transfer of title was, in the primary applicant’s view, an invalid transaction.

   e.The Purchaser purchased the land with the intention of subdividing it into farming and commercial slots to on-sell to third parties.  However, her application for subdivision approval was rejected.

   f.In November 2009 the Purchaser contacted the primary applicant’s parents and requested that they buy the land back from her for 3500 million dong.

   g.In December 2009 the primary applicant’s parents bought the land back for ‘the agreed price’ of 1500 million dong.  Again, there was no official contract of sale of land.

   h.The Purchaser then demanded an additional 2000 million dong compensation for ‘financial loss’ arising from missed opportunities during the 2 years that she held the land.  The primary applicant’s parents refused to make payment and they have been in dispute for over ten years.

   i.During the lengthy period of the dispute between the Purchaser and the primary applicant’s parents the Purchaser has “paid off gangsters to try to get the money” from the primary applicant’s parents.  The primary applicant says:

   My parents have suffered continuous threats against them, including destruction of property with rocks being thrown through windows of their home and criminals coming to the house verbally harassing them for the money.

   The criminals will not stop as 2,000,000,000 VND is a significant amount of money, and they will not let go of the chance to earn a cut once it is paid to [the Purchaser].

   I do not know exactly how [the Purchaser] hired these criminals, but she must have known someone with a contact or network to these people.  It is quite common in Vietnam for people to hire gangsters to settle disputes using threats and violence.

10. The primary applicant claims that he and his wife and family are personally under threat from the Purchaser’s hired criminals if they return to Vietnam. 

11. The primary applicant makes it clear in his witness statement dated 5 January 2022  that his claim for protection is limited to the property dispute and any arising risk.  He says:

65. In my protection visa application form, there was incorrect or inconsistent information provided.  I received assistance by [Mr A] in Melbourne who completed my application, and either misunderstood me or purposely recorded false answers.

66. In regard to the police investigation in Vietnam, this is not one of my protection claims. I told [Mr A] of the situation and it was recorded as I fear being arrested by police in Vietnam.  This is incorrect.

67. In June 2017, I was hanging out with friends in my hometown when some of my friends starting [sic] to fight each other physically. I was not involved in the fight.  The police came and took all of us back to the station.  I was arrested and gave my statement to the police. They let me go and told me they will be in touch. I was not charged and have a clear record.

68. I do not fear being arrested, charged or investigated if I were forced to return to Vietnam.

69. In relation to the property dispute involving my parents, there is only one property in question, not multiple. Furthermore, my parents have not been physically harmed by criminals only impacted financially, psychologically and emotionally.

70. Further, I was not followed by the hired gangsters in Australia at my school while studying. There was the attack on May 2010 where the passports were stolen and no other events.

1. The primary applicant confirmed during the hearing on 20 January 2022 that his claim was based on the risk from gangsters targeting the primary applicant’s parents, and that he did not fear arrest on his return to Vietnam.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. 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.

3. 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).

4. 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.

5. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

1. 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.

2. ‘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.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

1. 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

1. The issue in this case is whether each of the applicants is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person.  For the reasons set out below, the Tribunal is not satisfied that the applicants are such persons, and as such the decision to not grant the applicants protection visas should be affirmed.

Credibility

1. The Tribunal’s reasoning throughout these Reasons has been conducted on the basis that the primary applicant’s evidence be taken at its highest.  In doing so, the Tribunal does not make any finding about the primary applicant’s credibility.  The primary applicant’s claims and evidence have been inconsistent, and his explanations for the inconsistencies have not satisfied the Tribunal. They include a claim that the Department’s interpreter said certain things to the primary applicant during the Departmental interview, which the Tribunal would make some enquiries about if it was necessary to make a finding about the applicant’s credibility. However, the Tribunal does not need to engage with the potential credibility issues in this matter because the Tribunal’s decision does not turn in any way on the truthfulness of the primary applicant’s account.  Accepting the primary applicant’s evidence at its highest, the Tribunal is still not satisfied that the criteria for the grant of a protection visa are met.

Membership of a social group

1. The applicants’ submissions dated 27 January 2022 set out the basis on which the primary applicant claims to satisfy the refugee criteria in the following terms:

a) He is outside of his country;

b) He fears persecution in the form of serious harm and discriminatory conduct towards him as a target of hired gangsters, criminals and corrupt officials in Vietnam arising from an ongoing financial property dispute involving his parents and as someone who has a real risk of being targeted due to their perception of his wealth arising from his residence in Australia. He believes that he will suffer serious harm and threats to life and liberty arising from being pursued by criminal elements hired by a third party collecting his parents’ monetary debt and are waiting for his return from Australia to take further action;

c) It is submitted that the strict COVID-19 restrictions and lockdowns in Vietnam have prevented the Review Applicant’s parents from being further targeted and physically pursued by the hired gangsters and criminals during the pandemic;

d) It is submitted that Review Applicant’s fear is well founded based on documented evidence of violence enforced by hired gangsters in collection of debts and large amounts of money from individuals and their families across Vietnam;

e) The Review Applicant has informed us that his father was physically harmed [in] May 2017. A group of thugs came to his parents’ house and asked them to pay the money. An argument took place, and the Review Applicant’s father was punched in the face. He went to the hospital and received 4 stitches [to a body part]. The Review Applicant’s mother had recently recalled this event. She had forgotten about it, as it took place over 4 years ago;

f) It is contended that the real chance of persecution if he was to return to Vietnam under the circumstances is not remote or insubstantial or a farfetched possibility. The Review Applicant submits the gangsters are specifically waiting for him to return to Vietnam. The gangsters’ target is the Review Applicant, who is perceived to be wealthy as he has lived in Australia for many years;

g) The Review Applicant cannot avail himself of the Vietnamese authorities’ protection as he believes that they cannot or will not provide reasonable protection from harm due to widespread corruption;

1. The 27 January submissions liken the primary applicant’s situation to being a family member of a person who has an unpaid debt owing to a loan shark in Vietnam, a situation that the DFAT Country Information suggests may cause risk against which there is limited protection from the police where there is no written evidence of the loan.[3]

   [3] DFAT Country Information Report dated 11 January 2022 [3.102] – [3.104]

2. The Tribunal accepts that such an analogy may be apt to the situation in which the primary applicant says his parents are in.  On his account, which for the purpose of these reasons the Tribunal is taking at its highest, his parents entered into an informal and potentially invalid land transfer for which they received substantial consideration from the Purchaser. The Purchaser was unable to obtain approval for subdivision and risked losing the value of her investment. She therefore wishes to reverse the transaction, and the parents have been unable to do so because the money has already been spent on the primary applicant.  The Purchaser has therefore obtained the assistance of gangsters to recover what she considers to be a debt.  The Tribunal accepts that the Purchaser is broadly analogous to a loan shark, and the applicants may be members of a social group being ‘relatives of victims of extortion in Vietnam’.

Fear of persecution

1. It is not necessary for the Tribunal to consider whether the applicants have a genuine fear of persecution because of their membership of the above social group, because the Tribunal does not accept that any such fear would be reasonable.

2. According to the primary applicant’s statement his fear that the Purchaser will harm him if he returns to Vietnam arises because of oral threats of harming the primary applicant made by the Purchaser to the primary applicant’s parents (Threats), and on a single incident in which the primary applicant says that his family’s passports were stolen (Passport Theft).

The Threats

1. The Tribunal does not accept it as reasonable for the primary applicant to fear persecution to himself because of the Threats. In his 5 January witness statement and during the hearing on 20 January 2022 the primary applicant told the Tribunal that his parents had not been physically harmed by the Purchaser or any hired gangsters.  Rather his parents “have suffered continuous threats against them, including destruction of property with rocks being thrown through windows of their home and criminals coming to the house verbally harassing them for the money”.[4] 

   [4] Primary applicant’s witness statement dated 5 January 2022 at [47]

2. He later confirmed that in May 2017 there was an incident in which his father argued with a person who came to his house seeking the money, in the course of which argument his father was punched in the face.

3. Even if the Tribunal accepted all of that evidence, there is nothing in that level of conduct against the primary applicant’s parents to suggest that the primary applicant would be at risk of serious harm because of his relationship with them if he were to return to Vietnam.  There has been a single incident of relatively mild violence perpetrated against his father, in circumstances of an argument, some verbal harassment against his parents, and some limited destruction of property. 

4. There is no suggestion of any serious harm being inflicted on any family member currently present in Vietnam for the purpose of compelling obedience from the primary applicant’s parents. 

5. It would represent a very significant escalation of the Purchaser’s conduct for her to harm or cause to be harmed the primary applicant and his family.  There is no evidence to suggest that such an escalation is imminent. 

6. The Tribunal has considered whether the global pandemic might have temporarily relieved the primary applicant’s parents of harassment by the Purchaser.  It is not clear why that should be the case, when the conduct was threatening in nature rather than physically violent.  There is no evidence before the Tribunal to suggest that the Purchaser has been unable to make threatening telephone calls or send threatening letters during the pandemic lock downs.

7. The Tribunal put to the applicant that ‘criminal syndicates’ that made threats to extort typically carried out the threats if they did not get what they want.  The applicant agreed that this was the case. The Tribunal further put to him that his parents had been threatened for more than 10 years and had not complied with the demands, without consequence. The applicant suggested that this was because the Purchaser was awaiting his return to Vietnam before she did anything more than make threats.  The Tribunal does not accept that explanation; even if the applicant believes it to be true, there is no reasonable foundation for such a belief.  It is purely speculative, and the speculation is without any factual or evidentiary foundation.

The Passport Theft

1. The Tribunal does not consider it reasonable for the primary applicant to fear persecution if he returns to Vietnam because of the Passport Theft.  That incident is described by the primary applicant in his statement as “a couple of men came knocking at the door and entered [their] room”.  The men demanded that the primary applicant and his wife pay 2 million dong to the Purchaser.  At the time, the primary applicant did not know about the property dispute and did not know what “the criminals” were talking about.  The “criminals” then “threatened” the primary applicant and his wife “asking for [his] passport”.  He retrieved his passport and the “criminals” pushed him to the ground while “taking [his] passports and running”. 

2. The primary applicant expanded on the Passport Theft during the hearing on 22 January 2022.  Although he indicated that he was frightened by it, he was clear that the perpetrators did not commit serious violence in the course of the theft, and that they ran away when they thought there might be witnesses to their activities. The primary applicant specifically confirmed that the men left the house with his passports and then saw his neighbour and started running.

3. The Passport Theft occurred in May 2010.[5] There has been no further direct contact between the primary applicant and the Purchaser or her hired gangsters since that date.  The primary applicant remained at the same address for at least another full year, perhaps two years, although he changed rooms.[6] There was no further incident in the period he was living there, notwithstanding that neither he nor his parents made any payment to the Purchaser. 

   [5] Primary applicant’s witness statement dated 5 January 2022 at [19]

   [6] 1 year according to the primary applicant’s witness statement dated 5 January 2022 at [64], and 2 years according to the primary applicant’s oral evidence to the Tribunal.

4. There has been no subsequent incident against the primary applicant or any other applicant in the period May 2011 to the present. 

5. The primary applicant does not know of any similar incidents with his siblings, who have not had their passports taken or been hurt.  He says that the Purchaser assumes that “because [he] is working and living in Australia, that [he has] a lot of money, compared to that of [his] siblings who are living in Vietnam and [country deleted].”  That may be the case, but it does not support the proposition that the primary applicant would be persecuted on his return to Vietnam.  The latter proposition is purely speculative, and the primary applicant’s speculation is without any evidentiary basis other than the non-violent theft of his and his wife’s passports.

Combined effect of the Threats and the Passport Theft

1. Having determined that neither the Threats nor the Passport Theft are individually capable of supporting a reasonable fear of persecution if the primary applicant returns to Vietnam, the Tribunal has considered whether the combined effect of both the Threats and the Passport Theft may give rise to a reasonable fear.  The Tribunal finds that it does not.  There is no evidence arising from the overall conduct of the Purchaser or anyone acting on her behalf to suggest that she is likely to cause serious harm to the primary applicant because of her claim that his parents owe her money in the event that he were to return to Vietnam.

Complementary protection

1. The Tribunal has considered whether there is a real risk that the primary applicant will suffer significant harm if he returns to Vietnam.

2. The definition of significant harm is exhaustive: the 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.

3. There is no evidence to support a finding that the Purchaser or any other person intends to deprive the primary applicant of his life, or otherwise inflict harm on him that would fall within the definition of significant harm. No harm has been inflicted on the primary applicant’s parents that would satisfy the exhaustive definition of significant harm.  The primary applicant has not been impliedly or explicitly threatened with loss of life or other significant harm if he does not comply with the Purchaser’s demands on his parents.  If such a threat had been made it would be hollow at this stage – more than a decade has elapsed since the Purchaser’s threats allegedly commenced and she has not followed through with any significant harm.  Even allowing for the possibility that covid-restrictions have limited her ability to inflict harm, they have only been in place for the last 2 years.  In the preceding 8 years the threatening conduct has not, on the primary applicant’s evidence, escalated in any way.

4. The Tribunal considers that there is not a real risk of the primary applicant suffering significant harm if he returns to Vietnam.

The second – fifth applicants

1. The Tribunal has considered whether any of the second-fifth applicants may satisfy the criteria for being a refugee or directly entitled to protection based on their own circumstances.  There is no evidence before the Tribunal to support that any of the other applicants might be at risk of serious or significant harm.  The Tribunal accepts that they are members of the same family unit as the primary applicant, and therefore the success or failure of their applications turns on that of the primary applicant.

Conclusion

1. For the reasons given above the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations.

2. None of the applicants satisfies 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

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

Jessica Henderson
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.

…

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.

…

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…