1719333 (Refugee) - [2023] AATA 4433

1719333 (Refugee) [2023] AATA 4433 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simon Leske
CASE NUMBER: 1719333

COUNTRY OF REFERENCE: Vietnam
MEMBER:Justin Meyer
DATE:5 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 October 2023 at 9:59am
CATCHWORDS
REFUGEE – protection visa – Vietnam – family members ran an illegal gambling operation – family members borrowed money from loan sharks and bank – risk of harm – remote and/or far-fetched – internal relocation – state protection – “well-founded” – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 9 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 26 May 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act.
The applicant appeared before the Tribunal on 17 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1719333 (Refugee)

Details

AGLC: 1719333 (Refugee) [2023] AATA 4433
Case: [2023] AATA 4433
Decision Date: 5 October 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Vietnam. The applicant claimed a well-founded fear of persecution on the basis of being a family member of individuals who had unpaid debts to illegal money lenders, commonly known as loan sharks. The applicant also raised concerns about his mental health and history of family violence. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, either as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) or under the complementary protection provisions in section 36(2)(aa).

The central legal issues were whether the applicant had a well-founded fear of persecution for a Convention reason, and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Vietnam, he faced a real risk of suffering significant harm. This involved assessing the prevalence and methods of loan sharks in Vietnam, the availability and effectiveness of state protection, and the reasonableness of internal relocation as a means of avoiding harm. The Tribunal also considered the applicant's explanation for not responding to a request for further information from the Department in 2017, attributing it to a misunderstanding of the process and the actions of his migration agents.

The Tribunal considered extensive country information regarding the activities of loan sharks in Vietnam, noting their widespread nature, aggressive debt collection tactics, and the potential for violence and harassment against debtors and their families. It also examined evidence suggesting that state protection in Vietnam is often ineffective due to corruption and a lack of written evidence for loans. The Tribunal found that the applicant's fear of harm was not remote or far-fetched, and that relocation within Vietnam would not be a reasonable or practicable option given the pervasive nature of loan shark networks and potential corruption. The Tribunal also acknowledged the applicant's mental health condition and history of family violence as factors contributing to his vulnerability.

Ultimately, the Tribunal affirmed the decision under review. While acknowledging the applicant's claims and the country information presented, the Tribunal concluded that the applicant did not satisfy the criteria for a refugee under section 36(2)(a) of the *Migration Act*. Furthermore, the Tribunal found that the applicant did not meet the complementary protection criteria under section 36(2)(aa), as it was not satisfied that there were substantial grounds for believing he faced a real risk of significant harm as a necessary and foreseeable consequence of removal to Vietnam. The Tribunal noted that there was no suggestion the applicant was a member of the same family unit as a person who already held a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant’s identity is established as a [age]-year-old male, as evidenced by a Vietnamese passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.Claims and evidence In his application to the department, the applicant claimed as follows (as summarised by the delegate): He cannot return to Vietnam because he was ‘travelling’ and 'I can no longer in the country’ and ‘before I came to Australia, the situation did not exist’ and ‘the government can not help me’ and ‘I cannot live there’.On 10 July 2017 the department sent a letter via email to the applicant requesting further information in relation to his claims for protection. This letter further stated that if no further information was received a decision may be made on his application without any further requests for information. The applicant did not respond to this request. The applicant made written claims to the Tribunal on 10 August 2023 as follows:At the outset, we would like to acknowledge the vulnerability of the Applicant and ask that regard is given to his poor mental health and his history of family violence. We note that the Applicant’s mental health condition is currently undiagnosed, however we refer to the Applicant’s statement at paragraphs [66] – [67] where he expresses that he has resorted to self-harm on multiple occasions during and even after Covid-19 lockdown and had to seek help from a therapy. Given the Applicant’s mental health issues, we submit that the Tribunal should consider the guidelines of the Administrative Appeals Tribunal on credibility and vulnerability when assessing the Applicants’ claims.….The Applicant has a well-founded fear of persecution in Vietnam for the following refugee grounds: • As an actual or imputed member of a particular social group, being: A family member of individuals who has unpaid debts to illegal money lenders (loan sharks) As outlined in the submissions below, the Applicant’s fear of persecution is well-founded because of his profile if he is to return to Vietnam. By way of summary, the Applicant claims to fear harm on the basis of his mother’s and uncle’s previous illegal gambling operation in Vietnam, and the risks involved from her subsequent loan from illegal moneylenders. Further, the Applicant’s mother and uncle also owe a significant amount of money to illegal moneylenders. It is submitted that if the Applicant was removed to Vietnam, this family connection to illegal moneylenders would place him at risk of serious harm.…By way of summary, we note that the following incidents of past harm have occurred to the Applicant: • The Applicant was the victim of family violence as a child. This included physical and mental abuse perpetrated by the applicant’s parents, predominantly the applicant’s mother, and later his step-father in Australia. The Applicant’s mother and uncle operated an illegal gambling business in Vietnam. Further, the Applicant’s mother and Uncle both owe money to illegal moneylenders or ‘loan sharks’ in Vietnam. This resulted in the authorities and/or individuals involved in illegal money lending visiting the Applicant’s house since 2013 to ask for the money to be repaid. These visits by loan sharks’ gang members were accompanied by weaponry and acts of aggression, including physically pulling on the Applicant's mother's hair. The Applicant had to hide inside the house to avoid being seen. The Applicant’s mother could not repay the debt. The family was forced to flee to Australia and subsequently sold their house in Vietnam, but the Applicant’s mother could not settle the debt. On multiple occasions since 2014, loan shark gang members have persistently harassed the Applicant's grandfather, employing threats, curses, and even throwing noxious substances such as shrimp paste at his residence, with the latest incident occurring last week. The Applicant cannot safely relocate within Vietnam because the loan sharks can find him through his networks. The Applicant was forced to hide in his grandparent’s house and conceal his identity during their two visits to the country in 2014 and 2016. The Applicant has sent money over to his grandparents to assist with repaying debt, but it is not enough and the harassment is still ongoing. Due to the traumatic experiences endured throughout his life, the Applicant exhibits indications of unstable mental health and distress. During the COVID lockdown, he resorted to self-harm and had to seek therapy thereafter. We further to the Applicants’ statutory declaration dated 10 August 2023 and his grandfather’s statement of support provided to the Tribunal as evidence of the Applicants’ past persecution. C. Finding of Fact: Delegate’s Concerns We note that the Delegate made the following adverse findings in relation to the Applicant’s claims: • The applicant has not provided sufficient information to support his claims for protection. • The applicant did not respond to a further request by the Department dated 10 July 2017 in writing to elaborate on his claims. Finding of Fact: Response to Department’s concerns At the outset, we refer the Tribunal to the Applicant’s most recent statutory declaration, 10 August 2023 where he has provided a detailed explanation in response to the Department’s concerns. At paragraph [61] – [63], the Applicant instructed that his previous Migration Agents applied for a protection visa on his behalf while their mother's partner visa application was under review at the AAT. The Applicant's initial understanding was that this application was intended to allow him to continue living and studying in the country, without a comprehensive grasp of the protection visa criteria. The Applicant stated that upon receiving a Department request dated 10 July 2017, he was confounded by its significance and promptly forwarded it to the Migration Agents. However, the Agents failed to provide clarifications or guidance on the matter and thus he was not fully aware of its importance. The Applicant clarifies that his intention was never to disregard the Department's request, stressing that immediate compliance would have occurred if they had understood its purpose. We therefore submit that the Applicant’s explanation is plausible, given the complexities surrounding his situation. Finding of Fact: Country Information We submit the following updated information to the persecution and harm faced by individuals who have unpaid debts to illegal moneylenders. A. Loan sharks in Vietnam A loan shark, is also known as a "Black Credit" provider, is a moneylender notorious for imposing extremely high interest rates, often under illegal conditions7. These lenders can be individuals or groups who operate without authorization, concealing their illegal activities through pawns, financial businesses, or the leasing of licensed properties. According to the 2023 UK country information report: To smoothen the “Black Credit”, these lenders usually play some certain tricks like leaflets websites, social networks, advertisements of giving loans without direct meeting, without mortgage, simple procedures, immediate disbursement for a loan amount from 1 million to several tens of million dongs. They also use high technology to organize “Black Credit” activities through the internet in the form of online lending, peer-to-peer lending at high interest rates. In order to circumvent the law and evade the investigation and evidence collection of police agencies, high-interest loans are often masked by disguised contracts of which interest rates are intentionally showed in the contract lower than in reality or revealed in another paper (such as a loan note, handwritten paper to be able to destroy or change easily).’ [UK Visas and Immigration, ‘Country Policy and information note: fear of illegal moneylenders, Vietnam’, January 2023, < ] Some of these gangs use pawnshops and rental and wholesale businesses as fronts for their operations. They lend money to a range of borrowers whom they recruit through social networks and aggressive marketing. For small unsecured loans, they do not require collateral, trust, or a prior connection with the borrower. Some ask for a photocopy of the ID or household certificate, and only occasionally keep the original document.According to the January 2022 DFAT report: 3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence. 3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor. 3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place. 3.105Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts. 3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders. 3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less. The 2023 UK Country information report further states: 4.1.1 Viet Nam Net, an online news source, noted in 2019 that: ‘According to the [State Bank of Vietnam] SBV’s Banking Supervision Agency, loan sharks with exorbitant interest rates often targeted people with unstable incomes who lived in remote areas and need money for healthcare and food.’ 4.1.2 Viet Nam Net, noted in a report from 2020 that the Covid-19 pandemic has resulted in many people losing their jobs and has allowed illegal moneylending to increase. The article noted that MPS had reported that ‘…in the first six months of 2020, the number of criminal cases of this kind increased by 700 percent compared with the same period last year. From April 15, 2019, to April 15, 2020, the police discovered 1,152 cases and 2,423 subjects related to black credit. 1,427 defendants in 602 cases have been prosecuted, while 911 subjects in 382 cases have been fined. The police said black credit has exploited legal loopholes to develop. Lenders now easily approach borrowers through social networks and apps.’ 4.1.3 Channel News Asia, who are based in Singapore with correspondents in major Asian cities and report on global developments with an Asian perspective, noted that: ‘Since the COVID-19 outbreak, millions of Vietnamese workers have experienced unemployment, furloughs or falling incomes. Job instability and fallen incomes have benefitted both legal and illegal lending.’ 4.1.4 The Australian Government’s Department of Foreign Affairs and Trade (DFAT) country information report of January 2022, based on a range of public and non-publicly available sources including on-the-ground knowledge and discussions with a range of sources, stated: ‘Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious [extortionate] loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.B. Consequences of borrowers unable to pay off debts The 2023 UK report indicates a connection between black credit and human trafficking: 4.6.1 A 2019 article on the Electronic Immigration Network website notes that: ‘…Loan sharks are closely connected to trafficking victims and often act as migration brokers. Traffickers frequently take advantage of debt bondage to control their victims, as trafficked person are lured with promises of economic opportunity. Traffickers also threaten families back home to ensure the victims continue to cooperate.’The US State Department’s 2022 Trafficking in Persons report noted that: ‘Vietnamese labor recruitment firms—in particular, those affiliated with state-owned enterprises—and unlicensed brokers reportedly continued to charge some workers seeking overseas employment higher fees than the law allowed, placing many in indebtedness that traffickers could use to exploit them.’Further consequences of non-payment are laid out in the 2023 UK report: 4.7.1 In a written statement sent via the British Embassy following the UK HO FFM to Vietnam, MPS stated that: ‘Upon late repayment of debtors, these lenders certainly call their employees or hire external ganglands to carry out the debt collection in illegal manners like threats, psychological terrorization such as throwing dirt, placing funeral wreaths, coffins, using free SIM cards to threaten the debtors, destroying the debtor’s property, intentionally injuring, humiliating the debtors, causing troubles at their residence place, business place etc. These activities do not in the scope of the criminal punishment but cause fear, confusion, economic damage, loss of victims’ credibility and produce pressing matters for the masses around them. Many victims were controlled and threatened by these wrongdoers so they daren’t denounce and cooperate in providing evidence to the police. Particularly to legalize debt collection in sophisticated way, they also set up State-authorized debt collection companies in which a gang of criminals… are hidden in the shade of a company.’ 4.7.2 Diplomatic sources told the UK Home Office FFT that: ‘If they take out a loan it is a loan for the family. We do occasionally receive anecdotal reports where someone does something in the UK and the family here get harassed. 4.7.3 IOM told the UK HO FFT that: ‘Depending on the circumstances, it is certainly possible that retribution could be sought for an unpaid debt.’ 4.7.4 News sites reported that people who were unable repay their loans and their friends and family were threatened by their debtors … 4.7.9 In July 2022 VnExpress International reported that loan sharks in Ho Chi Min City were harassing employers of workers who had taken out loans and defaulted on their repayments, threatening destructive action against their business as well as relatives. The Investor also reported in July 2022 that the Vietnam Association of Seafood Exporters and Producers had urged the police to take action as member firms were being harassed and its CEO defamed by loan sharks for loans their employees had defaulted on. The Investor article stated that when employees defaulted on their payments they were threatened, along with their relatives and friends. Both articles noted that employers were also threatened and told to co-operate by making the workers repay their debt or risk negative publicity about the company, damage to the factory, physical harm to themselves and their family. Additionally, it is reported that loan sharks employ harsh tactics to recover debts. These methods involve imposing penalties and compound interest, resorting to verbal and physical abuse, causing disturbances at borrowers' residences, harassing their family members, revealing the debt to spouses, publicly shaming individuals by sharing their pictures and personal details in their community, and even vandalizing their homes with paint and fermented shrimp sauce.In December 2021, Tuoi Tre News, a local news source, reported: Nguyen Van Dien, the 46-year-old kingpin, and 15 of his subordinates have been arrested to facilitate police investigation. Preliminary information showed that most of the members hail from Hai Phong City and had been convicted of various crimes. Officers launched their investigation in late May as the gang appeared to participate in several organized crimes in Ho Chi Minh City and other southern provinces such as Dong Nai and Ba Ria-Vung Tau. On Monday, many teams of officers raided 14 locations and arrested the 16 suspects. They also confiscated two pistols, 120 bullets, some other types of weapons, about VND580 million ($25,250) worth of cash, an automobile, 23 mobile phones, and relevant documents. Investigators stated that the gang previously operated a gambling racket in Cambodia. After the COVID-19 pandemic broke out in early 2020, the suspects moved back to Vietnam to run several gambling websites. They exchanged information with gamblers via chat apps such as Viber and Telegram and often performed their transactions in cash or via various bank accounts to hide their traces. Deals related to the ring’s gambling activities have amounted to about VND2.15 trillion since early 2020. Further investigation is ongoing. C. State protection The 2022 DFAT report noted that: ‘Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks, but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.’19 The 2021 US report also noted that: The law provides for an independent judiciary, but the judiciary was effectively under the control of the CPV. There were credible reports political influence, endemic corruption, bribery, and inefficiency strongly distorted the judicial system. For example in May, a Kon Tum City judge was arrested on suspicion of accepting bribes. Most, if not all, judges were members of the CPV and were screened by the CPV and local officials during their selection process to determine their suitability for the bench. Judges are reappointed every five years, following reviews of their conduct by party officials. The party’s authority was particularly notable in high-profile cases and when authorities charged a person with corruption, challenging or harming the party or state, or both. Defense lawyers routinely complained that, in many cases, it appeared judges determined the guilt of defendants prior to the trial. There continued to be credible reports that authorities pressured defense lawyers not to take religious or democracy activists as clients and questioned their motivations for doing so. Authorities also restricted, harassed, arrested, and disbarred human rights attorneys who represented political activists. The law required attorneys to violate attorney-client privilege in national security cases or other serious crimes.20 2021 US Human right practice report Vietnam - United States Department of State 2022 Trafficking in Persons Report: Vietnam - Vietnam - United States Department of State There are also other instances where certain Vietnamese officials, particularly at the commune and village levels, were implicated in complicity. These officials were alleged to have enabled trafficking or taken advantage of victims by accepting bribes from traffickers.22 The most recent 2023 UK report continues to affirm Vietnam's lack of effective state protection for borrowers: 2.5.1 In general, the state is both willing and able to offer effective protection. There is a functioning criminal justice system for the detection, prosecution and punishment of acts constituting persecution or serious harm, which is generally accessible. The onus is on the person to demonstrate otherwise. Decision makers must consider each case on its facts. 2.5.2 The Vietnamese authorities have made efforts to tackle illegal moneylending with some provinces setting up special police units to address the problem. The Ministry of Public Security (MPS), who manage the police, told the UK Home Office fact Finding Team in 2019 that the government had recognised the seriousness of the issue of illegal moneylending and had directed them to address it 2.5.3 According to some reports, police are proactive in investigating illegal moneylending networks and prosecution of these networks has occurred. An article in VnExpress International noted that since 2019 MPS have dealt with more than 2,700 cases of illegal moneylending involving nearly 5,000 people. Nearly 2,000 cases, involving 4,000 defendants have also been prosecuted 2.5.4 Whilst authorities have shown a willingness to police illegal moneylending and prosecutions have occurred, apprehending and convicting offenders remains difficult. The high interest rates charged by creditors which are not normally written on loan papers make it difficult to prove a violation occurred. The increase in moneylending apps has also made it difficult to police, although a lack of evidentiary evidence does not mean that authorities are unwilling 2.5.5 Corruption can affect police effectiveness and impunity remains. However, DFAT noted the distinction between high- and low-level corruption with higher level corruption much less tolerated and more likely to be investigated and punished 2.5.6 The government has taken steps to improve lending options and protect against aggressive debt collection. In June 2022, Prime Minster Pham Minh Chinh requested that the central bank find solutions to help people access official bank loans to prevent them from seeking credit from illegal moneylenders. In 2021 the government also introduced curbs on financial companies to limit the number of times they can contact debtors when seeking repayments and to prevent financial companies from selling debt to third parties for collection.Relevantly, in 1732984 (Refugee) [2022] AATA 3165, the Tribunal was satisfied that there were substantial grounds for believing that the applicant faced a real risk of suffering significant harm if returned to Vietnam under s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal expressed that the risk of significant harm was due to the findings that the Applicant’s family members owed significant debt to loan sharks in Vietnam, and that the Applicant faced a real risk of harm from the loan sharks if returned to Vietnam. Further, the Tribunal found that police in Vietnam would not offer adequate protection to the Applicant, and that the Applicant would face the risk of harm across all parts of Vietnam. Applicant fears that he will be subject to violence, discriminated against, unable to subsist and/or killed on the basis of his membership of of a particular social group in that he is a family member of individuals who has unpaid debts to illegal money lenders (loan sharks). Under s 5J(5) serious harm includes: (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. The harm feared by the Applicant is serious harm. Under s 5J(4), if an applicant fears persecution for a reason under 5J(1)(a): (a) that reason must be the essential and significant reason for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. In MIMA v Hamad, the Full Federal Court stated at [17] that ‘systematic conduct’ can be interpreted in one sense refers to mean “deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent”. This risk is one faced by the Applicant personally and not by the population generally. All Areas of Receiving Country 5J(1)(c) For the Applicant to have a well-founded fear of persecution within the meaning of s5J(1), the real chance of persecution must relate to all areas of the country. It is submitted that the Applicant will not be able to safely relocate anywhere within the country as loan sharks are prevalent across Vietnam and are connected. State Protection 5J(2) State protection is not available for the Applicant in Vietnam for the following reasons: • State authorities in Vietnam are corrupt. Country information above supports the notion that the Applicant will not be afforded protection. Conclusion – s36(2)(a) It is submitted the Applicant has a well-founded fear of persecution upon return to Vietnam for reasons that satisfy section 5H(1) of the Migration Act. His fears are not limited to problems of a private nature but concern his fear of persecution and an absence of effective state protection for Convention reasons. In light of this, the Applicant is owed Australia’s protection obligations as a refugee. It is submitted that the Applicant cannot return to Vietnam or safely relocate. The Applicant will be unable to avail himself of the protection of the state. In the event that the Tribunal finds that the Applicant does not meet the refugee definition of a refugee as set out in the Migration Act, we submit that he should be granted protection under the Complementary Protection regime per section 36(2)(aa). He clearly still faces the risk of significant harm if he were to be returned to Vietnam. Complementary protection criteria assessment and finding — s36(2)(aa) Section 36(2)(aa) of the Act sets out the criterion for the grant of a Protection visa on complementary protection grounds. The criterion is that the decision maker is satisfied that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because: “there are 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.” Under s.36(2A), a person will suffer ‘significant harm’ if: • the person will be arbitrarily deprived of his or her life • the death penalty will be carried out on the person · the person will be subjected to cruel or inhuman treatment or punishment, or • the person will be subjected to degrading treatment or punishment. In MIAC v SZQRB (2013) FCAFC 33, Lander and Gordon JJ held that ‘real risk’ imposes the same test as ‘real chance’26. As established above, there is a real chance that the Applicant will face serious harm in Vietnam based on his family members unpaid loan to illegal moneylenders in Vietnam. Based on the country information available, it is apparent that the Applicant would face a real risk of significant harm if he were to return to his home country and will not be afforded adequate state protection. Reasonableness of relocation – s36B The ability for the Applicant to relocate will depend on his particular individual circumstances and the impact the relocation will have on them. In addition, the area of relocation must provide a meaningful existence where the basic norms of civil, political, and socio-economic human rights are met.The Applicant cannot practicably relocate to another part of Vietnam. The Tribunal must consider the Refugee Guidelines which state: What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation. The applicant’s own particular circumstances must therefore be carefully considered. Relevant factors may include age and life experience, sex, health, disability, family responsibilities and relationships, social or other vulnerabilities, financial difficulties or other problems in travelling to or residing in the new place, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, civil status, skills, educational, professional and work background and opportunities, available or realizable assets, previous stay or employment in the proposed region, any past persecution and its psychological effects…. However, these matters should not be treated as a checklist to be considered in every case. The range of factors that will be relevant in any particular case will be largely determined by the case that the applicant seeks to be made out and other matters that may arise on the material. Relocation is both unavailable and unreasonable for the Applicant for the following reasons: • Loan sharks are prevalent across Vietnam and are connected, and the above country information confirms that the debtors employ various individuals and techniques to track down people who owe money. • Country information also confirms that a high prevalence of corruption exists within the State, therefore, we submit that authorities are open to bribes across all areas of the State and could assist debt collectors in locating the Applicant. The significant harm feared cannot be avoided by the Applicant relocating as loan sharks are widespread and connected throughout the country. It is submitted that it will be difficult for people like the Applicant to relocate elsewhere within Vietnam. It is submitted above that with the level of corruption within the State, the Applicant will not be availed any protection irrespective of where he relocates since the loan shark community will be able to bribe state officials to gain access to the Applicant’s whereabouts. Conclusion on Complementary Protection – s 36(2)(aa) There are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Vietnam, there is a real risk he will suffer significant harm as defined in s36(2)(aa) of the Act on the basis of his profile as a family member of individuals who have unpaid debts to illegal moneylenders.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a refugee as defined in s.5H(1) of the Act and meets s.36(2)(a) or meets the complementary protection criteria in s.36(2)(aa) For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Identity The applicant’s identity is established as a [age]-year-old male, as evidenced by a Vietnamese passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.Claims and evidence In his application to the department, the applicant claimed as follows (as summarised by the delegate): He cannot return to Vietnam because he was ‘travelling’ and 'I can no longer in the country’ and ‘before I came to Australia, the situation did not exist’ and ‘the government can not help me’ and ‘I cannot live there’.On 10 July 2017 the department sent a letter via email to the applicant requesting further information in relation to his claims for protection. This letter further stated that if no further information was received a decision may be made on his application without any further requests for information. The applicant did not respond to this request. The applicant made written claims to the Tribunal on 10 August 2023 as follows:At the outset, we would like to acknowledge the vulnerability of the Applicant and ask that regard is given to his poor mental health and his history of family violence. We note that the Applicant’s mental health condition is currently undiagnosed, however we refer to the Applicant’s statement at paragraphs [66] – [67] where he expresses that he has resorted to self-harm on multiple occasions during and even after Covid-19 lockdown and had to seek help from a therapy. Given the Applicant’s mental health issues, we submit that the Tribunal should consider the guidelines of the Administrative Appeals Tribunal on credibility and vulnerability when assessing the Applicants’ claims.….The Applicant has a well-founded fear of persecution in Vietnam for the following refugee grounds: • As an actual or imputed member of a particular social group, being: A family member of individuals who has unpaid debts to illegal money lenders (loan sharks) As outlined in the submissions below, the Applicant’s fear of persecution is well-founded because of his profile if he is to return to Vietnam. By way of summary, the Applicant claims to fear harm on the basis of his mother’s and uncle’s previous illegal gambling operation in Vietnam, and the risks involved from her subsequent loan from illegal moneylenders. Further, the Applicant’s mother and uncle also owe a significant amount of money to illegal moneylenders. It is submitted that if the Applicant was removed to Vietnam, this family connection to illegal moneylenders would place him at risk of serious harm.…By way of summary, we note that the following incidents of past harm have occurred to the Applicant: • The Applicant was the victim of family violence as a child. This included physical and mental abuse perpetrated by the applicant’s parents, predominantly the applicant’s mother, and later his step-father in Australia. The Applicant’s mother and uncle operated an illegal gambling business in Vietnam. Further, the Applicant’s mother and Uncle both owe money to illegal moneylenders or ‘loan sharks’ in Vietnam. This resulted in the authorities and/or individuals involved in illegal money lending visiting the Applicant’s house since 2013 to ask for the money to be repaid. These visits by loan sharks’ gang members were accompanied by weaponry and acts of aggression, including physically pulling on the Applicant's mother's hair. The Applicant had to hide inside the house to avoid being seen. The Applicant’s mother could not repay the debt. The family was forced to flee to Australia and subsequently sold their house in Vietnam, but the Applicant’s mother could not settle the debt. On multiple occasions since 2014, loan shark gang members have persistently harassed the Applicant's grandfather, employing threats, curses, and even throwing noxious substances such as shrimp paste at his residence, with the latest incident occurring last week. The Applicant cannot safely relocate within Vietnam because the loan sharks can find him through his networks. The Applicant was forced to hide in his grandparent’s house and conceal his identity during their two visits to the country in 2014 and 2016. The Applicant has sent money over to his grandparents to assist with repaying debt, but it is not enough and the harassment is still ongoing. Due to the traumatic experiences endured throughout his life, the Applicant exhibits indications of unstable mental health and distress. During the COVID lockdown, he resorted to self-harm and had to seek therapy thereafter. We further to the Applicants’ statutory declaration dated 10 August 2023 and his grandfather’s statement of support provided to the Tribunal as evidence of the Applicants’ past persecution. C. Finding of Fact: Delegate’s Concerns We note that the Delegate made the following adverse findings in relation to the Applicant’s claims: • The applicant has not provided sufficient information to support his claims for protection. • The applicant did not respond to a further request by the Department dated 10 July 2017 in writing to elaborate on his claims. Finding of Fact: Response to Department’s concerns At the outset, we refer the Tribunal to the Applicant’s most recent statutory declaration, 10 August 2023 where he has provided a detailed explanation in response to the Department’s concerns. At paragraph [61] – [63], the Applicant instructed that his previous Migration Agents applied for a protection visa on his behalf while their mother's partner visa application was under review at the AAT. The Applicant's initial understanding was that this application was intended to allow him to continue living and studying in the country, without a comprehensive grasp of the protection visa criteria. The Applicant stated that upon receiving a Department request dated 10 July 2017, he was confounded by its significance and promptly forwarded it to the Migration Agents. However, the Agents failed to provide clarifications or guidance on the matter and thus he was not fully aware of its importance. The Applicant clarifies that his intention was never to disregard the Department's request, stressing that immediate compliance would have occurred if they had understood its purpose. We therefore submit that the Applicant’s explanation is plausible, given the complexities surrounding his situation. Finding of Fact: Country Information We submit the following updated information to the persecution and harm faced by individuals who have unpaid debts to illegal moneylenders. A. Loan sharks in Vietnam A loan shark, is also known as a "Black Credit" provider, is a moneylender notorious for imposing extremely high interest rates, often under illegal conditions7. These lenders can be individuals or groups who operate without authorization, concealing their illegal activities through pawns, financial businesses, or the leasing of licensed properties. According to the 2023 UK country information report: To smoothen the “Black Credit”, these lenders usually play some certain tricks like leaflets websites, social networks, advertisements of giving loans without direct meeting, without mortgage, simple procedures, immediate disbursement for a loan amount from 1 million to several tens of million dongs. They also use high technology to organize “Black Credit” activities through the internet in the form of online lending, peer-to-peer lending at high interest rates. In order to circumvent the law and evade the investigation and evidence collection of police agencies, high-interest loans are often masked by disguised contracts of which interest rates are intentionally showed in the contract lower than in reality or revealed in another paper (such as a loan note, handwritten paper to be able to destroy or change easily).’ [UK Visas and Immigration, ‘Country Policy and information note: fear of illegal moneylenders, Vietnam’, January 2023, < ] Some of these gangs use pawnshops and rental and wholesale businesses as fronts for their operations. They lend money to a range of borrowers whom they recruit through social networks and aggressive marketing. For small unsecured loans, they do not require collateral, trust, or a prior connection with the borrower. Some ask for a photocopy of the ID or household certificate, and only occasionally keep the original document.According to the January 2022 DFAT report: 3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence. 3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor. 3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place. 3.105Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts. 3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders. 3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less. The 2023 UK Country information report further states: 4.1.1 Viet Nam Net, an online news source, noted in 2019 that: ‘According to the [State Bank of Vietnam] SBV’s Banking Supervision Agency, loan sharks with exorbitant interest rates often targeted people with unstable incomes who lived in remote areas and need money for healthcare and food.’ 4.1.2 Viet Nam Net, noted in a report from 2020 that the Covid-19 pandemic has resulted in many people losing their jobs and has allowed illegal moneylending to increase. The article noted that MPS had reported that ‘…in the first six months of 2020, the number of criminal cases of this kind increased by 700 percent compared with the same period last year. From April 15, 2019, to April 15, 2020, the police discovered 1,152 cases and 2,423 subjects related to black credit. 1,427 defendants in 602 cases have been prosecuted, while 911 subjects in 382 cases have been fined. The police said black credit has exploited legal loopholes to develop. Lenders now easily approach borrowers through social networks and apps.’ 4.1.3 Channel News Asia, who are based in Singapore with correspondents in major Asian cities and report on global developments with an Asian perspective, noted that: ‘Since the COVID-19 outbreak, millions of Vietnamese workers have experienced unemployment, furloughs or falling incomes. Job instability and fallen incomes have benefitted both legal and illegal lending.’ 4.1.4 The Australian Government’s Department of Foreign Affairs and Trade (DFAT) country information report of January 2022, based on a range of public and non-publicly available sources including on-the-ground knowledge and discussions with a range of sources, stated: ‘Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious [extortionate] loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.B. Consequences of borrowers unable to pay off debts The 2023 UK report indicates a connection between black credit and human trafficking: 4.6.1 A 2019 article on the Electronic Immigration Network website notes that: ‘…Loan sharks are closely connected to trafficking victims and often act as migration brokers. Traffickers frequently take advantage of debt bondage to control their victims, as trafficked person are lured with promises of economic opportunity. Traffickers also threaten families back home to ensure the victims continue to cooperate.’The US State Department’s 2022 Trafficking in Persons report noted that: ‘Vietnamese labor recruitment firms—in particular, those affiliated with state-owned enterprises—and unlicensed brokers reportedly continued to charge some workers seeking overseas employment higher fees than the law allowed, placing many in indebtedness that traffickers could use to exploit them.’Further consequences of non-payment are laid out in the 2023 UK report: 4.7.1 In a written statement sent via the British Embassy following the UK HO FFM to Vietnam, MPS stated that: ‘Upon late repayment of debtors, these lenders certainly call their employees or hire external ganglands to carry out the debt collection in illegal manners like threats, psychological terrorization such as throwing dirt, placing funeral wreaths, coffins, using free SIM cards to threaten the debtors, destroying the debtor’s property, intentionally injuring, humiliating the debtors, causing troubles at their residence place, business place etc. These activities do not in the scope of the criminal punishment but cause fear, confusion, economic damage, loss of victims’ credibility and produce pressing matters for the masses around them. Many victims were controlled and threatened by these wrongdoers so they daren’t denounce and cooperate in providing evidence to the police. Particularly to legalize debt collection in sophisticated way, they also set up State-authorized debt collection companies in which a gang of criminals… are hidden in the shade of a company.’ 4.7.2 Diplomatic sources told the UK Home Office FFT that: ‘If they take out a loan it is a loan for the family. We do occasionally receive anecdotal reports where someone does something in the UK and the family here get harassed. 4.7.3 IOM told the UK HO FFT that: ‘Depending on the circumstances, it is certainly possible that retribution could be sought for an unpaid debt.’ 4.7.4 News sites reported that people who were unable repay their loans and their friends and family were threatened by their debtors … 4.7.9 In July 2022 VnExpress International reported that loan sharks in Ho Chi Min City were harassing employers of workers who had taken out loans and defaulted on their repayments, threatening destructive action against their business as well as relatives. The Investor also reported in July 2022 that the Vietnam Association of Seafood Exporters and Producers had urged the police to take action as member firms were being harassed and its CEO defamed by loan sharks for loans their employees had defaulted on. The Investor article stated that when employees defaulted on their payments they were threatened, along with their relatives and friends. Both articles noted that employers were also threatened and told to co-operate by making the workers repay their debt or risk negative publicity about the company, damage to the factory, physical harm to themselves and their family. Additionally, it is reported that loan sharks employ harsh tactics to recover debts. These methods involve imposing penalties and compound interest, resorting to verbal and physical abuse, causing disturbances at borrowers' residences, harassing their family members, revealing the debt to spouses, publicly shaming individuals by sharing their pictures and personal details in their community, and even vandalizing their homes with paint and fermented shrimp sauce.In December 2021, Tuoi Tre News, a local news source, reported: Nguyen Van Dien, the 46-year-old kingpin, and 15 of his subordinates have been arrested to facilitate police investigation. Preliminary information showed that most of the members hail from Hai Phong City and had been convicted of various crimes. Officers launched their investigation in late May as the gang appeared to participate in several organized crimes in Ho Chi Minh City and other southern provinces such as Dong Nai and Ba Ria-Vung Tau. On Monday, many teams of officers raided 14 locations and arrested the 16 suspects. They also confiscated two pistols, 120 bullets, some other types of weapons, about VND580 million ($25,250) worth of cash, an automobile, 23 mobile phones, and relevant documents. Investigators stated that the gang previously operated a gambling racket in Cambodia. After the COVID-19 pandemic broke out in early 2020, the suspects moved back to Vietnam to run several gambling websites. They exchanged information with gamblers via chat apps such as Viber and Telegram and often performed their transactions in cash or via various bank accounts to hide their traces. Deals related to the ring’s gambling activities have amounted to about VND2.15 trillion since early 2020. Further investigation is ongoing. C. State protection The 2022 DFAT report noted that: ‘Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks, but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.’19 The 2021 US report also noted that: The law provides for an independent judiciary, but the judiciary was effectively under the control of the CPV. There were credible reports political influence, endemic corruption, bribery, and inefficiency strongly distorted the judicial system. For example in May, a Kon Tum City judge was arrested on suspicion of accepting bribes. Most, if not all, judges were members of the CPV and were screened by the CPV and local officials during their selection process to determine their suitability for the bench. Judges are reappointed every five years, following reviews of their conduct by party officials. The party’s authority was particularly notable in high-profile cases and when authorities charged a person with corruption, challenging or harming the party or state, or both. Defense lawyers routinely complained that, in many cases, it appeared judges determined the guilt of defendants prior to the trial. There continued to be credible reports that authorities pressured defense lawyers not to take religious or democracy activists as clients and questioned their motivations for doing so. Authorities also restricted, harassed, arrested, and disbarred human rights attorneys who represented political activists. The law required attorneys to violate attorney-client privilege in national security cases or other serious crimes.20 2021 US Human right practice report Vietnam - United States Department of State 2022 Trafficking in Persons Report: Vietnam - Vietnam - United States Department of State There are also other instances where certain Vietnamese officials, particularly at the commune and village levels, were implicated in complicity. These officials were alleged to have enabled trafficking or taken advantage of victims by accepting bribes from traffickers.22 The most recent 2023 UK report continues to affirm Vietnam's lack of effective state protection for borrowers: 2.5.1 In general, the state is both willing and able to offer effective protection. There is a functioning criminal justice system for the detection, prosecution and punishment of acts constituting persecution or serious harm, which is generally accessible. The onus is on the person to demonstrate otherwise. Decision makers must consider each case on its facts. 2.5.2 The Vietnamese authorities have made efforts to tackle illegal moneylending with some provinces setting up special police units to address the problem. The Ministry of Public Security (MPS), who manage the police, told the UK Home Office fact Finding Team in 2019 that the government had recognised the seriousness of the issue of illegal moneylending and had directed them to address it 2.5.3 According to some reports, police are proactive in investigating illegal moneylending networks and prosecution of these networks has occurred. An article in VnExpress International noted that since 2019 MPS have dealt with more than 2,700 cases of illegal moneylending involving nearly 5,000 people. Nearly 2,000 cases, involving 4,000 defendants have also been prosecuted 2.5.4 Whilst authorities have shown a willingness to police illegal moneylending and prosecutions have occurred, apprehending and convicting offenders remains difficult. The high interest rates charged by creditors which are not normally written on loan papers make it difficult to prove a violation occurred. The increase in moneylending apps has also made it difficult to police, although a lack of evidentiary evidence does not mean that authorities are unwilling 2.5.5 Corruption can affect police effectiveness and impunity remains. However, DFAT noted the distinction between high- and low-level corruption with higher level corruption much less tolerated and more likely to be investigated and punished 2.5.6 The government has taken steps to improve lending options and protect against aggressive debt collection. In June 2022, Prime Minster Pham Minh Chinh requested that the central bank find solutions to help people access official bank loans to prevent them from seeking credit from illegal moneylenders. In 2021 the government also introduced curbs on financial companies to limit the number of times they can contact debtors when seeking repayments and to prevent financial companies from selling debt to third parties for collection.Relevantly, in 1732984 (Refugee) [2022] AATA 3165, the Tribunal was satisfied that there were substantial grounds for believing that the applicant faced a real risk of suffering significant harm if returned to Vietnam under s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal expressed that the risk of significant harm was due to the findings that the Applicant’s family members owed significant debt to loan sharks in Vietnam, and that the Applicant faced a real risk of harm from the loan sharks if returned to Vietnam. Further, the Tribunal found that police in Vietnam would not offer adequate protection to the Applicant, and that the Applicant would face the risk of harm across all parts of Vietnam. Applicant fears that he will be subject to violence, discriminated against, unable to subsist and/or killed on the basis of his membership of of a particular social group in that he is a family member of individuals who has unpaid debts to illegal money lenders (loan sharks). Under s 5J(5) serious harm includes: (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. The harm feared by the Applicant is serious harm. Under s 5J(4), if an applicant fears persecution for a reason under 5J(1)(a): (a) that reason must be the essential and significant reason for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. In MIMA v Hamad, the Full Federal Court stated at [17] that ‘systematic conduct’ can be interpreted in one sense refers to mean “deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent”. This risk is one faced by the Applicant personally and not by the population generally. All Areas of Receiving Country 5J(1)(c) For the Applicant to have a well-founded fear of persecution within the meaning of s5J(1), the real chance of persecution must relate to all areas of the country. It is submitted that the Applicant will not be able to safely relocate anywhere within the country as loan sharks are prevalent across Vietnam and are connected. State Protection 5J(2) State protection is not available for the Applicant in Vietnam for the following reasons: • State authorities in Vietnam are corrupt. Country information above supports the notion that the Applicant will not be afforded protection. Conclusion – s36(2)(a) It is submitted the Applicant has a well-founded fear of persecution upon return to Vietnam for reasons that satisfy section 5H(1) of the Migration Act. His fears are not limited to problems of a private nature but concern his fear of persecution and an absence of effective state protection for Convention reasons. In light of this, the Applicant is owed Australia’s protection obligations as a refugee. It is submitted that the Applicant cannot return to Vietnam or safely relocate. The Applicant will be unable to avail himself of the protection of the state. In the event that the Tribunal finds that the Applicant does not meet the refugee definition of a refugee as set out in the Migration Act, we submit that he should be granted protection under the Complementary Protection regime per section 36(2)(aa). He clearly still faces the risk of significant harm if he were to be returned to Vietnam. Complementary protection criteria assessment and finding — s36(2)(aa) Section 36(2)(aa) of the Act sets out the criterion for the grant of a Protection visa on complementary protection grounds. The criterion is that the decision maker is satisfied that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because: “there are 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.” Under s.36(2A), a person will suffer ‘significant harm’ if: • the person will be arbitrarily deprived of his or her life • the death penalty will be carried out on the person · the person will be subjected to cruel or inhuman treatment or punishment, or • the person will be subjected to degrading treatment or punishment. In MIAC v SZQRB (2013) FCAFC 33, Lander and Gordon JJ held that ‘real risk’ imposes the same test as ‘real chance’26. As established above, there is a real chance that the Applicant will face serious harm in Vietnam based on his family members unpaid loan to illegal moneylenders in Vietnam. Based on the country information available, it is apparent that the Applicant would face a real risk of significant harm if he were to return to his home country and will not be afforded adequate state protection. Reasonableness of relocation – s36B The ability for the Applicant to relocate will depend on his particular individual circumstances and the impact the relocation will have on them. In addition, the area of relocation must provide a meaningful existence where the basic norms of civil, political, and socio-economic human rights are met.The Applicant cannot practicably relocate to another part of Vietnam. The Tribunal must consider the Refugee Guidelines which state: What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation. The applicant’s own particular circumstances must therefore be carefully considered. Relevant factors may include age and life experience, sex, health, disability, family responsibilities and relationships, social or other vulnerabilities, financial difficulties or other problems in travelling to or residing in the new place, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, civil status, skills, educational, professional and work background and opportunities, available or realizable assets, previous stay or employment in the proposed region, any past persecution and its psychological effects…. However, these matters should not be treated as a checklist to be considered in every case. The range of factors that will be relevant in any particular case will be largely determined by the case that the applicant seeks to be made out and other matters that may arise on the material. Relocation is both unavailable and unreasonable for the Applicant for the following reasons: • Loan sharks are prevalent across Vietnam and are connected, and the above country information confirms that the debtors employ various individuals and techniques to track down people who owe money. • Country information also confirms that a high prevalence of corruption exists within the State, therefore, we submit that authorities are open to bribes across all areas of the State and could assist debt collectors in locating the Applicant. The significant harm feared cannot be avoided by the Applicant relocating as loan sharks are widespread and connected throughout the country. It is submitted that it will be difficult for people like the Applicant to relocate elsewhere within Vietnam. It is submitted above that with the level of corruption within the State, the Applicant will not be availed any protection irrespective of where he relocates since the loan shark community will be able to bribe state officials to gain access to the Applicant’s whereabouts. Conclusion on Complementary Protection – s 36(2)(aa) There are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Vietnam, there is a real risk he will suffer significant harm as defined in s36(2)(aa) of the Act on the basis of his profile as a family member of individuals who have unpaid debts to illegal moneylenders.