1719333 (Refugee)

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 or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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.
3.105
Moneylending 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.

A Statutory declaration affirmed by the Applicant, dated 10 August 2023: was in these terms:
I, [the applicant] of [ ] , [Occupation 1], make the following declaration under the Statutory Declarations Act 1959:
My home area in Vietnam is Haiphong which is about 2 hours drive from Hanoi.
I grew with my parents and my younger sister. There were just the four of us in our household. I am [number] years older than my sister.
My family religion was Buddhist.
I went to primary school and one year of high school in Haiphong. I finished my schooling in Australia.
My parents separated before I came to Australia. This was about 4 to 6 months before we moved to Australia, when I was [age] or [age]. When they separated my father left the home but stayed in the same city. I still saw him every week.
My parents used to fight a lot before they separated.
Growing up I was abused by my parents a lot. They would often abuse me because they said I was not performing at school as they wanted me to. This included being beaten by them.
I was abused by my mother and father but it was mainly from my mother. This was mainly because I could not live up to her expectation. It started in grade [range] when I was [age]. It was physical abuse and would happen especially when she had discussions with my teachers and was not happy with the feedback about me. They would come home and beat me.
They would usually beat me up with a stick. I would have lots of bruises on my legs and arms as a result of this.
My sister was also abused but I don't know what reason she was beaten.
When I came to Australia at first my English was not good which affected my performance at school. This led to my mother beating me here as well.
She would also get angry with me if I wanted to talk to people outside of family like friends she didn't approve of. She would ask me for details about how the person was performing at school, and would judge the person by the way they look and then tell me I could not see them if they were not happy with them. My parents controlled my life in this way in Vietnam.
Whenever my parents fought with each other they would then take it out on me with mental abuse. They would fight about things like how their finances were doing, and if I tried to ask them to stop fighting they would then take it out on me and beat me.
When my parents separated my mother put lots of pressure on me to live with her. This pressure included her saying she disowned me on two occasions for spending time with my father just before we moved to Australia. She called me a traitor and would stop talking to me and told me to stop calling her my mother. This made me feel like she was a stranger even though we lived in the same house. On occasion she stopped talking to me for around 2 weeks. This mental abuse had a big effect on me.
My mother's gambling business
My mother had an illegal gambling business in Vietnam. The closest way I can describe this is a lottery. She did this work from our home in a room she would not allow anyone to enter. People would usually send her the numbers they chose by fax. Whenever she finished for the day she would always burn the documents she had been using to write down people's numbers. She did this work for a longtime, I can remember her doing it when I was a little kid.
The gambling business that my mother had was like roulette form of gambling. People would call up and ask her to write down their numbers, and then between 6pm to 8pm the numbers would be drawn and the winner with the right number would get the money.
I would estimate that over 30 people would ring up to place bets most times. I could hear some of the conversation from outside the room, which seemed to mainly be about how much the bets would be and what numbers were chosen.
My mother would write down the details of people's numbers and the amounts they bet in a notebook. There were others who would work with her.
I don't think my dad was involved in the gambling business. He worked in an office at the [workplace]. When things arrived at the [workplace] he would note down what was coming and what was going.
There were times when my mother's gambling business was making lots of money. During those times, we were able to get a new house and a car, which helped us move out from living with her grandparents. But things changed, and she had to sell her car because money ran out pretty quickly.
I remember the police showing up at our house about 4 or 5 times, roughly every 3 weeks, before we moved to Australia. They came to check if my mom was at home. Whenever they came, she told me to answer the door and say that I was home alone.
One of mother's friends worked in the police force. He would come to the house but in his street clothes rather than police uniform.
Once the authorities started coming before we left Vietnam, my mom began leaving the house to do her work somewhere else. Usually, the authorities would come in the evenings. She told me to tell them she wasn't home and that she had gone to another place. This was about 5 to 6 months before we moved to Australia. Sometimes they came when my mom was actually at home. She would instruct me to answer the door and inform them that she wasn't there. They often hung around for about half an hour and then left.
However, this did not work every single time. There were instances when the police entered the house and saw my mom. On those occasions, she told me to go into my room so I wouldn't overhear their conversation. Her friend from the police force sometimes gave her a heads-up about when they were coming so she could prepare.
On a few occasions the people my mother owed money to came to the house. When I was [age] I saw a group of people come to my grandparents' home asking for money and threatening them, and they tried to come into the house and my grandfather was short tempered and was talking back, and this led to them cursing my grandpa and yelling angrily at him. Some of my neighbours saw this and they tried to help by standing between my grandpa and those people. Luckily, no one was injured. This was two or three months before we came to Australia.
The people who came and argued with my mom were usually our neighbors who were gamblers, and they wanted the money they had won. Some were people my mother worked with in the gambling business, to whom she owed money because she also gambled and borrowed from them. But things got scarier when a bunch of strangers I had never seen before came with weapons and started threatening us. It was really scary because I'd never encountered them before.
After I came to Australia
Before December 2014 and after we left for Australia, my mother asked my grandparents to sell our house so they could use the money from the sale to pay people who were owed money. My mother initially wanted to use this money from the house to help us start a life in Australia but my grandparents told her she had no option but to let them use the money to pay back people she owed money to.
The people who were working in the gambling business with my mother that my mum owed money to were not paid back and would still come to the house. This was because there was not enough money from the sale of the house to pay them too.
I also understand that my maternal uncle has had a bad gambling addiction and owes money to people as well. He had to sell his house and had to move away and go into hiding. He has borrowed money from his employer. My maternal grandparents have been visited by people he owes money to as well.
From around 2 years ago my uncle called me sometimes to ask me to send money to him. I called my grandparents about this and they told me about his gambling debts. They don't speak to my uncle much anymore. But people still come to see my grandparents and make threats to them to tell them where he is or give them money he owes. I have sent over around $2,000 to my grandparents to help them.
My uncle calls me around once or twice a year when he needs money. I don't think he speaks to my mother much.
I believe my uncle mainly gambles by playing card games and doing sports betting.
My uncle was gambling from a young age and stopped for a while when he was focusing on his career, and was able to buy a house, but it has become much worse as he has an addiction.
Very recently I have found out from my grandfather that my uncle was working with my mother on the gambling business with her. To be honest, while I was growing up, my grandparents and my mom never went into the full details of what was going on. I have also been avoiding delving too deep into these matters because, for me, it's rea Ily tough to discuss. I had some scattered knowledge here and there; I understood that we had to leave Vietnam due to my mom's inability to pay her debts and thus people were chasing after us and our lives. Now due to my hearing preparation, we have talked about it and so I got to know more about it.
My grandparents don't work anymore and only make money by renting out a room in their house.
I speak to my grandparents on the phone. My grandfather told me that there have been many more times when these people who my mom was owed money to came and were threatening him and cursing him since I left for Australia. Neighbours came to try to help my grandpa and to stop those people, but got hit on the face and some were cut on their wrists. My grandpa told me these occasions these violent people carried weapons with them.
My understanding from my grandfather is that the amount owed between my uncle and my mother is between $95,000 to $100,000. Part of this is for the money my mother borrowed to arrange the documents and flights to come to Australia, and also money she owes for the costs of arranging what she needed to go to [Country 1].
My mother told my sister and I that the reason we had to leave Vietnam and go to Australia on a visitor visa was because it was not safe in Vietnam.
I had my own passport because I had travelled before this to [Country 2] and [Country 3] with relatives when I was younger. I went to [Country 2] when I was [age range] and I was about [age] years old when I went to [Country 3] and [Country 4].
When we came to Australia we stayed with a friend of my mother's in Melbourne until we found our own home and moved out.
Around 2 to 3 months after I arrived I started going to school here and continued at school until finishing year [grade].
My mother continued beating me in Australia. For example if I missed the public transport and got home late she would be very angry and beat me.
My mother and my stepfather met in Vietnam before we came to Australia. He was Australian and had a company in Vietnam I think which is how they met. He was aggressive with me as well. For example, he tried teaching me English when I arrived here and when I was not able to know the answer to something he would get angry and throw things at me. He would also get angry with me if I didn't want to eat what he said was local food. If I ever tried to talk back at him he would pick up whatever was close by and throw it at me, like a stapler, or a coffee cup.
He sponsored my mother for the partner visa. I never saw him being abusive to my mother, I was the one he took his anger out on.
I felt like the only time I felt like I had human rights was when I went to school in Australia.
My stepfather stayed with us whenever he was in Melbourne. He spent time in Queensland as well as I believe his parents were there. Most of the time he was in Melbourne with us.
My father came to Australia not long after we moved here. He is still in Australia as he stayed here. He is also in Melbourne. I talk to him around 2 to 3 days a week. I see him as well. We used to live together after I moved in with him when my mother left Australia and couldn't get back due to her bridging visa issue. I lived with my father for four or five years.
My father would not physically abuse me when I was in Australia like he did in Vietnam but he would sometimes get angry and yell at me because he said I should go to [Country 1] to live with my mother and was angry that I refused.
I believe my father applied for a protection visa around a few months before I did. He also used the same migration agents as I did. We didn't go to the same appointments.
When I travelled back to Vietnam twice with my mother and sister to visit, I would stay with my grandparents. My mother, my sister and stepfather would stay elsewhere. I recall a time when my mom came to visit my grandparents for just one night, but she had to do it discreetly. She hid inside the house and then left early the next morning.
The first time we went back was around March 2015 when I was [age] and we went back for around three weeks. My mother was scared about going back this time because she was worried that she would be stopped at the airport. I don't know why and did not ask. She was able to get through the airport without getting into trouble. The reason for going back this time was because my stepfather wanted us to.
The second time we returned was for two weeks in September 2016. This was because my grandmother got cancer.
I stayed mainly with my grandparents on my mother's side and also some time with my father's grandparents.
When I went back to Vietnam with my mother and sister to visit my grandparents in 2015 or 2016 for 10 days I was forced to stay inside the entire time. This was like experiencing lockdown before COVID. They did not let me leave the house at all. This was because they didn't want people to know we had arrived back in Vietnam
I had to hide my identity. If someone came to the house and saw me and asked who I was they said I was a child of a family friend who they were looking after, not that I was their grandchild. They never told me why they said this to people who visited.
My understanding is that they didn't want people to know I returned because they were worried the authorities or the criminal organisation my mother owed money to would find out I had returned and then assume my mother was back as well.
I saw them come to my grandparents' house from my window in my bedroom and asking my grandparents questions about where my mother was or whether her children had come back. They said no to these questions.
My father never came back to Vietnam with us.
My mother went back to Vietnam with my sister without me at around the end of 2016 or start of 2017 and they could not get back because she did not have the right bridging visa to return. After this my stepfather spoke to me a few times to check up on me but then after two to three months I didn't hear from him again. I was staying with my father after my mother left Australia.
I did not go back with my mother and sister to Vietnam on the third occasion which was the time they were not able to return because of the visa issue. I decided not to go because on the previous two times we went back I had to stay inside most of the time and I did not want to go through this again so I decided to stay in Australia.
My previous Migration Agents applied for the protection visa for me while my mother's partner visa application was at the AAT. My understanding was that this was to allow me to keep living and studying here. I did not have an understanding of the protection visa criteria.
I received the emails from the Department about my protection visa application because the migration agents did not put their names on the application even though they completed it. When I received the request from the Department dated 10 July 2017, I did not understand what it meant. I forwarded the email to the migration agents right after receiving it, but they never got back to me. They didn't explain its purpose or tell me what I should do about it so I did not realise its importance.
It had never been my intention to not comply with the request by the Department. If I had known its purpose, I would've responded right away.
My understanding is that my mother was doing illegal work in Vietnam and had to borrow money from criminals and was not able to pay them back.
My sister lives in [Country 1] with my mother. We don't speak too much but she has told me that my mother is very controlling of her life like she used to be with me. She is [age] now.
The first time I opened up about the abuse I suffered from my parents was when I saw a therapist during COVID lockdowns. I started feeling very bad and started cutting myself. I used the pain to drag my mind away from the flashbacks of the things I experienced when I was younger.
I saw the therapist for a few sessions and then as the lockdowns continued, I still felt very bad because I was stuck in my room and continued cutting myself. This lasted for around 2 months. I never went to hospital. I wrapped up the wounds to stop the bleeding.
My grandparents don't want me to come back to Vietnam. They worry about my safety if I returned because of the debts owed by my mother and uncle as I could be targeted and told I need to pay the money owed.
My mother was able to get [Country 1] citizenship through a partner visa there. I believe she is still in a relationship with [Country 1] husband because she hasn't said they had split up.
I feel I would be unsafe in Vietnam. One fear is that the police could be paid by people my mother owes money to lay false charges against me. I had seen this happen before in Vietnam. For example one time my dad got into a fight with someone who caused him to have a minor wound, and the policeman who was a friend of my parents suggested making a report saying the wound was much worse so that the other person who fought my dad could get a serious never got back to me. They didn't explain its purpose or tell me what I should do about it so I did not realise its importance.
It had never been my intention to not comply with the request by the Department. If I had known its purpose, I would've responded right away.
My understanding is that my mother was doing illegal work in Vietnam and had to borrow money from criminals and was not able to pay them back.
My sister lives in [Country 1] with my mother. We don't speak too much but she has told me that my mother is very controlling of her life like she used to be with me. She is [age] now.
The first time I opened up about the abuse I suffered from my parents was when I saw a therapist during COVID lockdowns. I started feeling very bad and started cutting myself. I used the pain to drag my mind away from the flashbacks of the things I experienced when I was younger.
I saw the therapist for a few sessions and then as the lockdowns continued, I still felt very bad because I was stuck in my room and continued cutting myself. This lasted for around 2 months. I never went to hospital. I wrapped up the wounds to stop the bleeding.
My grandparents don't want me to come back to Vietnam. They worry about my safety if I returned because of the debts owed by my mother and uncle as I could be targeted and told I need to pay the money owed.
My mother was able to get [Country 1] citizenship through a partner visa there. I believe she is still in a relationship with [Country 1] husband because she hasn't said they had split up.
I feel I would be unsafe in Vietnam. One fear is that the police could be paid by people my mother owes money to lay false charges against me. I had seen this happen before in Vietnam. For example one time my dad got into a fight with someone who caused him to have a minor wound, and the policeman who was a friend of my parents suggested making a report saying the wound was much worse so that the other person who fought my dad could get a serious charge. I believe it is easy for the police to create false charges like this especially if they are paid to do so.
I believe they would target me because my mother still owes lots of money and they will still do what they need to do to get me to pay.
A Statement of Support was made as follows
I, [Mr B] of [ ] Hai Phong, Vietnam make the following declaration:
I am making this statement to support the Protection Visa (subclass 866) application of my grandson, [the applicant] (also known as [Name 1]).
I can never forget the instances where people showed up in front of my house and my daughter's house, asking for money to be repaid. In 2013, both my daughter ([Name 1]'s mom) and my son ([Name 1's] uncle) ware operating the illegal lottery business. They made some money but also lost a lot of money. The first time it was a group of 8-10 people coming to my daughter's house (around 15 meters away from my house) to ask for the money to be repaid. They were carrying weapons with them: knives and broadsword. They got tattoo all over their bodies. They threatened that if we don't pay them back, they would kill us all.
Then later, they kept coming back to our houses, usually once every two days, sometimes once every three days and even every day to ask for their money. My daughter and her children couldn't get out of their house. We let the kids hide upstairs. The gangsters sometimes would even grab my daughter's hair outside and threatened to kill her.
Therefore in 2014, they tried to run away to Australia to hide. After finding out that my daughter went away, they came to my house to ask me to call my daughter to ask her to pay the money back. I told them that I did not have any contact with them, so I was unable to call.
Then they started to throw stinky liquids like shrimp paste mixed with oil to my house. Every single time they came to the house, they would raise their voices, yelling and cursing at us. They would threaten any neighbors that dared to intervene.
I can't remember exactly how many times my daughter returned to Vietnam, but she had to
go hiding every single time she was back. I believed those people knew exactly wherever she went. They were even able to track her down when she came to Ho Chi Minh city. They have connections everywhere; they know people who work in the airport or the air force in Ho Chi Minh city.
In 2014 and 2016, I remembered my daughter brought her kids, [Name 1] and [Name 2], back to Hai Phong to visit me twice. Except for [Name 1] who was hiding in my house, my daughter and [Name 2] went somewhere else to hide. Then in late 2016, my daughter and my granddaughter came to see me again briefly, then they moved to [Country 1] to hide and stayed there until now.
The loan sharks' people are still looking for my daughter and my son now. 4 days ago, they came to my house and threatened that "If you don't call your children to pay back the money then don't even dare to show your face on the street."
Prior to 2014, I remember they used to show up every two days. They came in big groups of more than 5 people and yelled and cursed outside our house. They all had weapons like knives and swords. Sometimes, neighbors tried to help by telling them to leave, but even they got hurt.
A little while before my daughter went to Australia, those troublemakers started coming way more often. Almost every single day, they came to our house and threatened us. I honestly can't remember how many times it happened.
To pay off the loan, I helped my daughter sell the house. She wanted to use the money to support their life in Australia, but I convinced her to use it to repay the people she owed money to. But the money we got from selling wasn't enough. So, those loan sharks came back again and again.
In my town, houses are bought and sold without needing any legal papers. There's no requirement for it. And that's still how things are done now, just like they've always been.
I knew that my daughter and son were both involved in illegal gambling activities. So many groups of people have come to the house to ask for money. I don't think they are the same group of people every single time. I think those gang members were hired to chase after my children for the debts.
I know that they are loan sharks. They loaned the money to my children with extremely high interest rates and thus my kids were unable to pay back that huge amount of debt.
As I said, they moved to Australia to hide from the loan sharks' people since it was getting more dangerous each day. Even when they relocated to Australia and then went back to Vietnam, they could not go out freely but went into hiding. The whole town knows about this since the loan shark's people keep coming here and threatening us.
I called the police multiple times, but they only came after the gangs left. I called police every single time the gang members came to my house to threaten me, but they only came after the gangsters already left — sometimes they did not even come. I honestly don't know how they worked.
In 2013 and 2014, police came to the house to look for my daughter. I didn't know what they asked her, but it was because of her illegal gambling business. Then after she moved overseas, the police stopped coming to look for her.
[Name 1] was back to Vietnam to visit me twice in 2014 and 2015, but he had to stay inside and hide in the house.
My son is also in hiding now. But I cannot tell you where exactly he is since it is not safe for him and people are still looking for him.
[Name 1] has sent me money to try to pay off the debts, but they were not enough.
Those people, as I said before, still come to my house so many times to look for my children. They did not physically abuse me, but they used weapons to threaten me to make calls to my daughter and son for money. I told them I don't know where they hid so how can I contact them. I explained to them that if we had money, we would have paid them back already. I asked them to please let my children live so that they can earn money to pay them back.
It's unsafe for [Name 1] to return to Hai Phong. It's extremely dangerous since the loan shark's people still come to the house regularly to ask for the money. If they knew [Name 1] is here who knows what they are going to do to his life.

Summary of transactions:
Customer: [name]
Date of birth: [date]
Sent to [name]
Location: [named money transfer business]
Generated date: 10/08/2023
This transaction summary is a system-generated statement upon the specific request(s) from the above customer. This may not be a full and complete statement.
The transaction summary will be for transactions conducted at [Company 1]'s branches under all registered trading names
24/05/21, AUD 845.05
14/10/21, AUD1,193.30,
25/08/22 AUD 343.00
17/03/23 AUD 313.00
23/06/23 AUD 243.00
The claims in the hearing were as follows:
The applicant came to Australia in 2014 aged [age]. His parents were divorced before then.
His mother was an [Occupation 2] but she also ran an illegal lottery business in Haiphong, Vietnam. He has one sister. His mother remarried an Australian, but that marriage ended as well, in 2017.
The applicant went to school in Melbourne at school, and he studied English. He obtained work at a [business] then became a supervisor in a [specified] store.
He lived in a rental share house. His father is in Australia and they see each other two to three times per week. His father also applied for a protection visa based on what the family’s previous migration lawyer had advised. He does not know the result of his father’s protection visa application as he does not want to share this information.
The applicant first came to Australia on a tourist visa and then apply for protection visa. There were issues with the migration agent/lawyer that they used.
The applicant said he talked to his grandparents around about 10 minutes per week. He wanted to see how they are. These are the grandparents on his mother’s side. He said he the applicant said he went back to Vietnam in 2015 as he was asked to visit his stepfather who was an Australian who was living in Vietnam.
He visited Vietnam a second time, in 2016, when his grandmother got cancer. He went for 10 days. He said it was not a peaceful and successful trip. He stayed at home all the time because his mother and his uncle owed money to people she worked with. Even when the parties moved to Melbourne people would see his grandparents demanding money to be repaid. For that reason his mother did not stay with his grandparents.
His mother met a man in Queensland who ultimately got involved in business in Vietnam.
The connection with his stepfather was not good. His mother only visited his grandparents for only one day.
His mother met an [Country 1 citizen]. She had gone back to Vietnam for four to five months but could not get a job because she owed money to a Vietnamese government bank. This was in 2017. She lives in [Country 1] and is an [Country 1] citizen now.
His mother had obtained bridging Visa A but had to return there for four to five months but could not get a job because of the money owed to the government bank, and because of people looking for her. This was roughly in 2017.
He has minimal contact with his mother.
The applicant said his physical health was okay. He said that his mental health was “a mess right now”. He said in 2019 protection application went to the Tribunal. He said he had no idea about the case at all. He said the agent stopped contacting him. He said he was abused by his parents, and mainly his mother. He said her personal expectations of him were severe he said. His mother hit him in Vietnam. He said his stepfather hit him or yell at him as well but his mother would not defend him.
He said the lockdown in 2021 gave him flashbacks of his experiences.
He said what his parents did was illegal and he might be a target if went to Vietnam. He said people were going after family members.
The applicant said he had been harming himself, and cutting himself. He had been taking sleeping pills and tried to put himself to sleep.
I asked if the applicant meets with therapist. He said that this had happened on a few occasions.
The applicant was eventually able work to from home. He saved a little money.
When asked what the applicant’s mental health was like the moment, he said that it was slightly better compared to the lockdown period. He said that he was working on a full-time job. He said he still got flashbacks. He said he had fear as if he were still there.
He said he was on a drug called Venlafaxine and this was a drug to treat depression. He said he had as recently as last week, and it enables him to sleep easier.
He said he is also taking Diazepam, which is a drug for the management of anxiety disorders. He said he had taken this as recently as last week. He said he had too much anxiety cutting himself.
He said that nobody in his family knew about his condition – only his therapist knew. He said he had looked up his condition online and done research. He said he had done one session with the therapist. He said that his GP had developed a mental health plan for him.
The applicant said that he worked 38 hours a week. His income in his tax return is stated as AUD42,000 per year.
I discussed with the applicant what risk he believed he faced in Vietnam. He said his mother ran an illegal lottery which involved plastic bags being filled with money and money being paid between 6pm and 8pm - this occurred on multiple occasions, and she was constantly on the telephone. He said many people came to the home. The police were looking for her. She would be at home but it was to be said by the applicant, if asked, that there was no one at home. Somebody had seen her nonetheless. She had not been arrested but he believed she had received a warning. Shortly afterwards she moved to Australia. Gamblers were angry that when they had put money ‘on’ and they were not paid back. His mother had to borrow from other people to pay them back. His mother was gambling herself, and put money on card games and sport betting. He said people in the neighbourhood were owed money, along with people in her own business.
I asked if she borrowed money from criminals. He said he was not sure if they were criminals but they hired criminal people to come to the house to threaten. The applicant said that he had seen them- they came to talk and they had to go upstairs. He did not know names of people owed money and who came to the house. He was a child and did not understand. He did see the people. There were different individuals. He overheard conversations that money needed to be returned that was borrowed. He did not hear amounts. He knew they were high interest rates. These loan sharks were involved in a criminal activity.
This happened all the way up to 2014. The operatives will still go up to his grandparents and threatened. His mother sold her house and took a portion of the sale amount to Australia.
Nonetheless people came to the grandfather. His uncle worked with his mother and was badly affected by gambling – he sold his house and went into hiding. The applicant said he was asked for money for his uncle - the applicant said he had sent AUD1,000 to help him. Money has been sent to the grandparents. He sent hundreds of Australian dollars to his grandfather for the other demands. Nonetheless the threats were still being made.
The total amount of money owed with interest is AUD95,000.
He was not sure of how the family had planned to deal with the issue – he was too young. Once he was older he started to help financially.
I asked what the police was doing about it. The applicant said that the grandfather calls the police but they arrived two hours later or do not arrive at all. He was told the criminals have a connection at the police force.
The applicant said violence that occurred because his mother had been dragged outside in 2013. They threatened her and his grandparents. The applicant said his grandfather was short tempered. The neighbourhood came out to break up the commotion. Some of the neighbours were slightly injured. The grandfather was not harmed, but he was scared.
The police will not protect the applicant, he stated. He said of his grandparents that they did get a police report, but nonetheless they left five or ten minutes later. The police said they did not see any evidence.
The applicant said the only thing that would stop it would be to pay the entire amount off, but the interest rate was constantly going up.
I asked if there was any written evidence for this. He said his mother had signed a contract.
I discussed relevant sections of the DFAT Vietnam country report[1]:
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.
[1] DFAT Country Information Report, Vietnam, 11 January 2022
The last time they came to visit was two weeks ago, the applicant said
People who owe money to loan sharks
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.
I discussed with the applicant whether he believed that the police could protect him. He said they would only come two hours later and his uncle had to relocate for instance. I note that there was not a reluctance to go to police.
I asked if there was a police report listing the crime and the victim. He said there was no evidence of this. He said they saw no evidence and only talked for ten minutes to his grandparents. He did not know exactly what they said but said there was no evidence. He said the police were just making an excuse.
The Tribunal discussed retaliation including harassment and violence. He said the threat was to harm or kill. When the family moved to Australia they said we had more money now they were in Australia. They knew that he sent money to Vietnam.
The applicant said that if he relocated he would have to go to the local government and get house registration. Money was owed to a government bank -if for example he would need to go to Ho Chi Minh City (Saigon) they would follow him around. His mother was followed by people in and out of the airport. He said people with with loan shark connections would be following her.
The Tribunal noted the following DFAT information: that 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.
He said his uncle had tried relocation, but they tracked him down and chased him. He could not get a job. He would need to identify his location to the government to live a normal life and then could be tracked down.
I noted that this was money to a legitimate bank and he was the child of the person who took out the loan. He said his grandfather had been paying it off.
Turning to loan sharks I discussed the large cities of Hanoi and Ho Chi Minh City (Saigon) or other more outlying areas as places to live if returned. I asked if he could be found if he went and lived in another region, or in a very populous city. The applicant said his uncle had tried to do that before, by going to Hanoi or some other small town near Haiphong, but they still tracked him down. He said they “chased after him.” He said he was not able to get a job. The applicant said that even now his parents owe money to a government bank, and they still send people to is grandparents to get updates. Wherever the applicant lives he has to go to the local government and put his name down, in order to get a bank account and credit card. And so he could be tracked down because he owes money to the government bank
I pointed out that this was money paid to a legitimate bank and for a real loan and he is a child of the people who took it out. I queried why the loan of his parents would be sheeted home to him. He said that they tried going to the grandfather but he kept rejecting them.
He said his mother when she went to Ho Chi Minh City (Saigon) while attempting to leave Vietnam for good had been tracked down at the airport and people were following her around the city until she got inside, before her flight. The Tribunal clarified that she did not relocate to Ho Chi Minh City (Saigon), but that she had to go there to depart the country. She was followed when she arrived in the city and until she departed from the airport, he said.
I asked who was following her. He said that he knew that back then she owed money to the loan shark. He said the loan sharks had people who worked in the airport, “all the air force, they can track who is going” – their name and details.
I pointed out that he was a [age]-year-old teenager when he left the country and not the one who owed the money. He was asked how were they would know he was back in Vietnam. He said they had a connection the airport connection. That is how they found out about his mother.
He said that they knew that he paid the money because the applicant grandfather said his grandson was paying. The parents and grandparents have little left and they know that. This leaves him as a source of money.
I asked if he went back to Vietnam how the criminals would know that he had returned. He said that they have his information at the airport. He said that that was how they found out about the whereabouts of his mother.
They were still going after his grandfather and they would go after him.
I discussed 5.18 of DFAT’s report[2] on relocation. The applicant said he would need to get his original documents back.
[2] DFAT Country Information Report, Vietnam, 11 January 2022
INTERNAL RELOCATION
5.18
Internal relocation is common. Police keep close watch over relocation and citizens staying even one night away from their homes must register with local police. The 2020 US Department of State Human Rights Report states that this is enforced more strictly in the Central and Northern Highlands districts.
5.19
Residents’ homes need to be registered with a document known as a hộ khẩu, or household registration book. In practice, police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. With urbanisation have come slums, particularly in large cities, as former rural residents have moved in search of work. DFAT is not aware of other cases where registration is refused; such refusal is unlikely.
5.20
There are two categories of registration (reduced from four under the previous law): temporary and permanent. Household registration requires citizens to register their permanent residence in only one district in Vietnam. To gain permanent residence status in a new district, citizens must either marry into a family already holding permanent residence, purchase land, or live in rental housing with an official lease and a minimum amount of liveable space.
5.21
Large cities such as Hanoi and Ho Chi Minh City have previously enacted local legislation to prevent relocation. These regulations may change rapidly. For example, DFAT’s December 2019 Country Information Report reported that restrictions were in place in Hanoi to prevent rural-urban transmigration based on infrastructure and overcrowding concerns. Those restrictions were removed in 2020.
5.22
In practice, internal migrants might be entitled to basic social services when they relocate to big cities like HCMC and Hanoi, but local authorities may not apply these policies consistently. Those who own a house or an apartment will have an easier time registering in one of those two cities. Those who attempt to relocate may experience bureaucratic difficulties, but DFAT understands that relocation is not impossible.
5.23
Without a local registration, access to services such as public education and healthcare becomes difficult; a local registration is required to access government services. A child cannot be registered without household registration documents and an identity card. It is possible to re-register in a new locale after moving, but this process can be lengthy and difficult, which deters some people. According to a 2019 fact[1]finding mission report by the UK Home Office, household registration is not a barrier to relocation; whereas previously major purchases such as a car required a local registration, these kinds of barriers have been removed over time. Still, registration would be required to sign up for utilities or internet service or obtain insurance.
5.24
Internal relocation and re-registration in a new residence is possible, but bureaucratic difficulties may arise for certain people. For example, women whose husbands die may have difficulty getting cooperation from their in-laws, or recently released prisoners might be refused registration by police who do not want ‘troublemakers’ in their district.
I also consider DFAT’s information on treatment of returnees:
TREATMENT OF RETURNEES
Exit and entry procedures
5.25
Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26
Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27
Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28
Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees
5.29
Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30
In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32
Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33
Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates. 5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.

I discussed 5.32 and if it that it was hard to get employment. He said he was not sure.
He would have trouble getting jobs. The fact that his parents owed money to the bank meant that this would prevent him getting a job. This had happened to his mother as well - she could not get a job before she left for good.
He said he would have to go back to Haiphong to get his original documents – they were all there and not anywhere else. I suggested that he could get those documents. He said he did not really know. His uncle was fired from his government job and could not get a job either. The Tribunal noted however that he was not his uncle or his mother – he was in fact another person. He said he was still from the same family – from his knowledge they were trying to get it from his parents and would seek it from him.
The applicant’s grandfather [gave] evidence by telephone. I asked why his daughter and family needed to live in Australia. He said his daughter and son were involved in illegal betting. The business was not running well and they lost business. He said there were threats to kill. He said people came as a group – eight to ten men in the middle of the night.
Asked if there was physical harm to anybody damage to property, he said they did not damage his home or his daughter. He said dirty shrimp paste mixed with lubricant was thrown onto the house. He said that his daughter was dragged by the hair the front of the house. He said there were threats to kill a neighbour.
I asked for the last time he heard about this business from any criminals. He said he was aware of ‘black market’ activities since 2013.
I asked if anything had changed this year. He said his daughter borrowed a certain amount from a creditor. She was required to regularly pay it back. Rough people came to her house. She ran away and came to his house. He said humiliation is taking place.
I asked if there was any trouble in 2023. He said that this year some people came the local Magistrates Court. He explained to them that his daughter could not pay back. It was suggested that he could pay some interest in his grandson could repay. This was regarding a debt from a legitimate government bank.
He said that there was more than the abovementioned. Black market people came and visited very often in 2023. According to the loan sharks around VND2,000,000,000 (AUD129,461)[3] is owed.
[3] >
I asked if his family ever developed a way to solve this problem. The witness said that he and his wife had decided to sell their house and get a smaller house in order to get money to pay the loan back. He lives in a suspended planning zone and no one has any interest in buying the house yet. I asked him if that would raise VND2,000,000,000 and he said it would not be that much. He said the estimated sale would be several hundred million Dong instead.
Asked whether his grandson live in another province in Vietnam and be safe, he said that criminal creditors will always following people and they had traced his daughter. She was constantly running and hiding from them and they were dangerous people.
It was submitted orally by the representative at the hearing that the grandparents referred to the applicant being overseas and being a more lucrative source of funds.
Large debts might not be repaid and the threat might remain and there might be continued targeting.
Another decision of the Tribunal, differently constituted [1728245] stated at [47] states:
In a report of the British Home Office Fact-Finding Mission to Vietnam published on 9
December 2019 (at page 24), it is recorded that enforcement gangs hired by creditors are often convicted criminals, who also often carry weapons. In-country diplomatic sources further informed the Fact-Finding Mission that in circumstances where a loan is taken out from an illegal money lender, it becomes, in effect, a debt owed by the whole family; and that it is therefore possible that other family members may also face retribution for unpaid debts. The Home Office Fact-Finding Mission was also advised that criminals are able to ascertain the whereabouts of persons who move to other parts of Vietnam via their obtaining this information from the Vietnamese police, who are known to be susceptible to bribes, in exchange for information. This latter point accords with other information documented by DFAT, which records in paragraph [5.4] of the Country Information Report for Vietnam from January 2022 that:
“a 2019 Transparency International survey on corruption found that more
than 61 per cent of Vietnamese people had paid a bribe to police in the last
12 months. Sources have reported cases of organised crime group groups
bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help”.
It was submitted by the representative that another important aspect to note was:
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
Transparency International’s report had found that 61% of people had had to pay a bribe to police.
In terms of Complementary Protection, there was an absence of ability to relocate – the applicant has been away along time from Vietnam and left as [age] year-old. He has had a long period away and has had compromised mental health. He has no family networks outside of Haiphong.
A post hearing submission was made on 22 August 2023
This submission will address the Tribunal’s concerns and provide further country information in support of the Applicant’s claims. We continue to rely on our previous submission dated 10 August 2023 and the materials provided to the Tribunal on the same date.
As outlined in the submissions below, the Applicant’s fear of persecution if returned to Vietnam remain founded in the reality of the current situation in Vietnam.
The Applicant’s claims focus on his fared harm in his home country of for the following reasons:
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 submission below, the Applicant’s fear of persecution is well-founded because of his profile if he is to return to Vietnam. This is because of his affiliation with his mother and uncle, both of whom were involved in illegal gambling activities in Vietnam and carry substantial debt owed to illegal moneylenders. It is submitted that if the Applicant was removed to Vietnam, his profile as a family member of individuals who owe debt to illegal moneylenders would place him at risk of serious harm. Furthermore, given his recent return from overseas, he could be targeted due to assumptions of possessing funds, potentially exposing him to even further harm.
A. Relocation
During the Tribunal hearing, the Member raised concern about the issue of relocation if the Applicant were forced to return to Vietnam. This concern was based on Vietnam's substantial size and highpopulation density, suggesting that the Applicants could relocate to larger cities such as Ha Noi or Ho Chi Minh City to escape the loan sharks.
We continue to rely on our pre-hearing submissions and the Applicant’s written and oral testimony with respect to this matter. The Applicant maintains that relocating to another city within Vietnam is not a viable option for his safety. This is because the loan sharks possess extensive connections throughout the country, making it likely they could trace and endanger him even in a different city.
Further, we submit the relocation is unavailable to the Applicant due to current stricter enforcement of Vietnam’s law on Citizen Identification and Residence. As the Applicant has been away from Vietnam for almost 10 years, he will be required to obtain a national identity card at the local police bureau where his household is registered. This means that the Applicant will have to go back to Hai Phong where his household is registered, to inform the local authorities of his return and to have his biometric data collected for the chip-based ID card. We submit that this process essentially undermines the purpose of relocation.
Additionally, Vietnam Residence Law 2020 provides that:
Article 9. Obligations concerning residence of citizens
1. Register their residence in accordance with this Law and other relevant provisions of law.
2. Provide sufficient and accurate information and documents on their residence for the competent authority and individual in a timely manner and take responsibility for the information and documents provided.
3. Pay residence registration charges as prescribed by laws on fees and charges.3
Therefore, even if the Applicant were to return to Vietnam and manages to move to a new city, he would be required to register his new residency with the local authority. The new Law on Residence 2020 states that the manual method of residence management by household registration books and temporary residence books are now being replaced by electronic residence management database. We also note that the current Law is unclear as to how this residence information will be handled and protected by the authority.
This raises significant concerns about the safety and well-being of the Applicant if he were to disclose his location through the required registration process. Considering how the loan sharks' members were able to track the Applicant’s mother during her trip to Ho Chi Minh city in 2016, there is a real possibility that they would be capable of doing the same once the Applicant returns to Vietnam. Given their connections, it is plausible that they could exploit these resources to bribe the authorities and locate the Applicant anywhere in Vietnam. The Applicant is unable to remain out of the loan sharks' reach and would not be able to avail himself of protection from harm regardless of where he was located in Vietnam.
We would also note that the Applicant's status as a returnee from a Western country further amplifies his vulnerability to becoming a more valuable target for loan sharks, as we have emphasised in our oral submission. This is due to the perception that he possesses financial resources and means to settle the debts. Furthermore, we submit that it is not reasonably foreseeable that this large family debts amounting to approximately VND 2 billion (equivalent to around AU$95,000) could be effectively repaid over time. Therefore, we submit that threats likely to remain if the Applicant were to return.
In the event that the Applicant were to secure employment in Vietnam, the loan sharks could still trace him and jeopardize his new job by pressuring him for repayment. According to VNExpress International in 2022, predatory loan sharks are employing aggressive tactics, including targeting the employers of individuals who have defaulted on payments. These tactics involve threats of destructive actions against their businesses and their relatives:
For a while now, the hotline at logistics firm Long Rich Vietnam Co. Ltd has been ringing almost all day. The callers are loan sharks demanding that the company cooperates and "hands over" workers who have borrowed money from them.
The usurers threaten that if the company, which is based in Linh Trung 2 Export Processing Zone in HCMC's Thu Duc City, fails to cooperate, they will publicize harmful information about the company on social media or send gangbangers over to damage its factory.
The constant calling, starting early in the morning and going on until late in the night, makes it impossible for the company to receive calls from their customers or partners.
5 ‘Usurious loan sharks harass factories after workers default’, VNExpress International (Online, 24 July 2022) And this is not all. The loan sharks also call company officials, including union heads and those working in its administrative office on their cell phones, making the same demands and threats.
We submit that this information emphasizes the genuine risk faced by the Applicant if he were to return to Vietnam, given his profile as a returnee from the West and the aggressive methods employed by loan sharks in the country.
In regard to reasonableness of relocation under Complementary Protection, we again emphasize the extended duration during which the Applicant has been absent from Vietnam and his absence of familial connections in other parts of the country. We therefore submit relocation will be practically challenging and unreasonable for the Applicant if he were to return to Vietnam.
B. Comparable AAT Cases
We would also like to refer the Tribunal to the following Tribunal matters which resonate with the Applicant’s situation. In 1728245 (Refugee) [2023] AATA 1510 (23 March 2023),6 the Tribunal was satisfied that there is a ‘well founded’ chance of the applicant and other family members of him being persecuted in Vietnam if they were to be required to return to that country, without the capacity to repay the loans. Taking into consideration multiple credible sources, the Tribunal accepted enforcement gangs can track individuals who relocate within Vietnam by obtaining it from the Vietnamese police, “who are known to be susceptible to bribes”,7 and that the Applicant would face the risk of harm across all parts of Vietnam:
In a report of the British Home Office Fact-Finding Mission to Vietnam published on 9 December 2019 (at page 24), it is recorded that enforcement gangs hired by creditors are often convicted criminals, who also often carry weapons. In-country diplomatic sources further informed the Fact-Finding Mission that in circumstances where a loan is taken out from an illegal money lender, it becomes, in effect, a debt owed by the whole family; and that it is therefore possible that other family members may also face retribution for unpaid debts. The Home Office Fact-Finding Mission was also advised that criminals are able to ascertain the whereabouts of persons who move to other parts of Vietnam via their obtaining this information from the Vietnamese police, who are known to be susceptible to bribes, in exchange for information.[16] This latter point accords with other information documented by DFAT, which records in paragraph [5.4] of the Country Information Report for Vietnam from January 2022 that:
1728245 (Refugee) [2023] AATA 1510 (23 March 2023). 7 1728245 (Refugee) [2023] AATA 1510 (23 March 2023), at [47]. “a 2019 Transparency International survey on corruption found that more than 61 per cent of Vietnamese people had paid a bribe to police in the last 12 months. Sources have reported cases of organised crime group groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help”.
In 1704387 (Refugee) [2021] AATA 1507 (8 April 2021), the Tribunal was satisfied that the applicant meets the criteria for complementary protection under s.36(2)(aa).8 After considering the possibility for the applicant to seek protection from Vietnamese authorities, the Tribunal found that the prevalent corruption within the Vietnamese police forces makes such protection unlikely:
I have considered whether the applicant could obtain protection from the Vietnamese authorities such that there would not be a real risk that he would suffer significant harm as per s.36(2B)(b). In MIAC v MZYYL[14] the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one. DFAT reports that the People’s Public Security Forces of Vietnam (PPSFV) is the country’s main police and security force and it operates at the national, provincial, district and commune levels. International observers report that corruption is highly prevalent within police ranks. DFAT assesses that police have limited ability to provide protection to civilians and are vulnerable to corruption and typically act with impunity[15]. In these circumstances, I am not satisfied that the applicant could obtain protection from an authority in Vietnam, such that there would not be a real risk that he will suffer significant harm.
Conclusion
The Applicant has demonstrated that he is a refugee under sections 36(2)(a) and 5H of the Act. He faces a well-founded fear of serious harm as defined under s5J of the Act. It is open to the Tribunal to be satisfied that the Applicant is a refugee under the Migration Act.
Alternatively, 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 they will suffer significant harm as defined in s36(2)(aa) of the Act. Therefore, the decision-maker should be satisfied that the Applicant is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
References
1 U.S. Department of State – Bureau of Consular Affairs, Vietnam, Identity Card,
2 Law on Citizen Identification to be revised to protect Vietnamese citizens’ rights’, Vietnam Law & Legal Forum (Online, 27 Feb 2023)
3 Vietnam Law on Residence 2020, article 9.
4 Vietnam Law on Residence 2020, article 2(3) and 3.
Evaluation and findings
The Tribunal has considered the broad number of claims made by the applicant. The Tribunal notes that there is limited evidence (other than the testimony of the applicant) to support the claims, although a witness made a statement and gave evidence in the hearing (the applicant’s grandfather), and the applicant was detailed in what he claimed.
The Tribunal in reaching its conclusions is working on the basis, and accepts, that the applicant’s mother and uncle incurred debts from illegal practices including gambling activities, borrowed money from other people, including from loan sharks and a bank. The Tribunal also is working on the basis, and accepts, that certain individuals from a bank, from a loan shark group, and from associates have been demanding and obtaining money in what they claim is for sums still owing. The Tribunal also in reaching its conclusions is working on the basis and accepts that a considerable amount of money ranging between AUD90,000 and AUD130,000 inclusive of interest is owed according to the demand of creditors and their operatives.
The Tribunal is of the view that the risk and harm faced is so remote and/or far-fetched that it does not amount to a real chance of persecution and thus does not lead to there being a well-founded fear of persecution. This is fundamentally because such a significant number of assumptions and stages need to be made, or need to occur and coincide, before harm might eventuate, that I do not accept it as a real risk.
For example, a first stage is that the applicant returns to Vietnam and obtains the documents he needs in order to gain registration and reside legally. For this to occur it is apparent that the applicant would need to visit his home city of Haiphong. It is possible that the obtaining of such registration and related documents takes some time. Nonetheless the Tribunal does not have any reason to find that this would take an inordinate amount of time and that he would be residing in Haiphong indefinitely. Household registration is not a barrier to living elsewhere, as DFAT has found. Secondly the Tribunal finds that it is speculative that loan sharks, their operatives, or criminals generally would become aware of his return to Haiphong and begin to target him within a relatively limited period.

The Tribunal considers it to be speculative and that operatives at an airport or within other agencies would connect with dangerous persons simply because he has passed through official areas. The Tribunal notes that the applicant’s belief is that his mother and/or his uncle were so surveilled upon, but the Tribunal is not able to see from detailed country information that this would occur to him. While the country information does speak of operatives and informants, I am unprepared to positively conclude that this scenario would happen in this case.
Another stage that would need to occur is for loan shark operatives or their associates to draw the link between the applicant and the debt which is allegedly owed by other people, i.e. his mother and his uncle.
Although he is certainly a family member of those persons, it is by no means clear that such individuals would necessarily link him to the debts and then take the further step of harassing him for money. While I note that the applicant’s grandfather is claimed to have been harassed, it cannot be necessarily inferred that another family member, who was a [age] year old child at the time of his departure from Vietnam, who has been away from the country for 10 years, would be identically or similarly dealt with. While the country information suggests that some persons target family members it is not a given that they will be targeted. Although there has been mention of the applicant by the grandfather according to the applicant’s claims, it is not clear by any means that the link will be drawn to him if he arrives in the country. It is not apparent that the applicant is a person of interest to these individuals or groups, that he has a discernible identity, that he is remembered, or that others will indiscreetly reveal his presence or identity to these individuals.
Another stage that would need to follow is that the applicant could not go to the police or that the police would ignore or be unable to deal with the applicant’s potential issues from loan sharks or their operatives or associated criminals. The UK country policy and information note on illegal moneylenders of January 2023 was quoted in detail by the applicant in regard to certain sections. The Tribunal however notes that at 2.5 of that same report under protection it is stated:
2.5 Protection
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 (see Police effectiveness in dealing with illegal moneylenders).
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 (see Arrests/prosecutions).
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 (see Loan sharks/pawnbrokers and Peer-to-peer money lending (P2P)).
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 (see Corruption).
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 (see Action to combat illegal moneylending)
The Tribunal on balance is of the view that there would be both willing and effective protection from the Vietnamese police and the functioning criminal justice system. The Tribunal is not satisfied that the applicant has demonstrated otherwise. Although there are claims that the police did not assist in earlier issues in Vietnam the Tribunal does not have clear evidence that the police are deliberately avoiding taking responsibility, or are corrupted in this particular matter. It may be a different situation for the applicant compared to what other family members have experienced. To say that it would be the same for the applicant is speculative. I note that the Vietnamese authorities have made efforts to tackle illegal moneylending and some provinces have special police units to address the problem. The country information is not indicative of a police force that is ignoring this issue or is unable to provide effective protection. Although the Tribunal acknowledges that there is corruption occurring in Vietnam the Tribunal is of the view that the thousands of prosecutions is reflective of activity being undertaken and is evidence of effective protection. The Tribunal notes that effective protection is not perfect protection and that a guarantee of protection is not the test, and there does not need anything more than effective protection by the relevant standard.

100. The Tribunal notes that yet another stage needed for there to be a well-founded fear of persecution and it is not established or shown in this case. A chain of events would involve several steps before hypothetical harm took place (dissemination, wider knowledge, then action by a hypothetical third party so motivated) and I am not satisfied that the harm is any more than remote, by this logic.
101. As a general reflection, I also note that ‘well-founded’ means something more than plausible. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. The courts have indicated that “well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. The fact that events might plausibly happen is not necessarily enough and I find that this is such a situation where possible plausibility does not mean ‘well-founded’.
102. Another reasonable query to the Tribunal’s mind is the sale of the grandfather’s property which may or may not occur, which the witness claimed would raise hundreds of thousands of Vietnamese Dong to pay to loan sharks and their associates. Although the witness said that no sale had occurred the Tribunal considers it within the realms of possibility that a sale could occur for a substantial sum and that payments for what are, after all, actual monies owed could be made. The Tribunal notes that it has always been claimed that monies were actually borrowed, that they are real loans and that it is axiomatic that people who lend money out legitimately expect to be repaid. This may in fact occur and may ameliorate some or all of the claimed risk to the applicant. The selling of the land remains a real possibility, as I do not have evidence that the issues around it are insurmountable.
103. The Tribunal also notes that money is owed to a government bank, but it is unable to settle on the exact amount owed. This is apparently uncertain to the applicant. The Tribunal finds that the money in question here is legitimately owed and must ordinarily be repaid no matter which country one lives in. I find there is no credible evidence that this money is to be violently extracted out of the applicant or anyone else.
104. The Tribunal notes that there were various counter-arguments raised to its findings as articulated by the applicant:
105. The Tribunal turns its mind to the mental health or psychological condition of the applicant. The Tribunal find that the applicant has suffered from and suffers now from anxiety and depression and /or related disorders and conditions. The Tribunal finds that this has made life more challenging, possibly saps confidence, affects mood and makes tasks more difficult. Nonetheless the applicant has been able to be employed in meaningful roles and apparently works competently. He presented as an articulate person and able to handle the challenges of a Tribunal hearing. I am of the view that he would be able to work in Vietnam. He has lived independently or relatively independently in Australia and has survived trauma, and functions adequately or well. While he has taken medication, I do not conclude that he is permanently reliant upon it, or that he might not be able to obtain it in Vietnam. I am not concerned about the applicant to such as degree to find that he could not function well outside of Haiphong or obtain work.
106. Having noted the applicant’s claims of mental trauma over years, the Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information.
107. I have given consideration to the applicant’s mental state at the time of the hearing. He was lucid throughout the hearing and could answer questions with confidence. He was given time to compose his thoughts. He was informed of his opportunity to call for a break at any time. Although the hearing was possibly stressful, he was capable of giving evidence competently. The hearing was conducted in accordance with breaks where needed and having questions repeated if necessary, and limiting the likelihood of stressful exchanges in the hearing.
Does the applicant meet the complementary protection criteria?
108. The Tribunal turns now to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm.
109. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: 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
110. The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test.
111. Inability to access services or employment – does not amount to torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life.
112. The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
113. The Tribunal is not satisfied that the harm the applicant claims he would suffer – destitution and/or illness as a result of inability to find a job and/or lack of access to medical or psychological services – would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Further, although hospitals and public clinics are not of a standard as they might be in an advanced economy, is not because of an intention of the government. Instead services are impacted by the state of the economy and lack of resources and underfunding rather than an intention to harm.
114. The Tribunal is not satisfied that the harm the applicant claims he would suffer as a family member of individuals who have unpaid debts to illegal moneylenders for the reasons stated above and that torture, cruel or inhuman treatment or punishment or degrading treatment or punishment would occur.
115. The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment because of inability to access jobs, services or treatment as there is no intention by the state to cause such harm.
116. The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life due to unavailability of jobs, services or treatment. There is no requirement for subjective intent applicable to ‘arbitrary deprivation of life’[4], but an element of deliberateness can be imparted into the words ‘arbitrarily deprive’. As there is no definition in the Act, the Tribunal has interpreted ‘arbitrary deprivation of life’ based on the ordinary meaning of the words,[5] while also being guided by legislative intention as expressed in the Explanatory Memorandum and Second Reading Speeches to the relevant bills, and international and local jurisdiction.
[4] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556, SZDCD v MIBP [2019] FCA 326
[5] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6]
117. ‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’[6] and in the Macquarie Dictionary as ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.[7]
118. ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[8] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[9]
119. The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life, for reasons of inability to access employment, treatment or services, or status as a person who might be seen as responsible for loans.
120. Similarly, the Tribunal is not satisfied that there is a withholding of state protection which would be faced by the applicant personally and that there would be an intentional withholding of protection.
121. The Tribunal is not satisfied, on the basis of the country reports quoted about law and justice in Vietnam, that there is systematic breakdown of law enforcement or that laws are routinely not enforced. The Tribunal is not satisfied therefore that there is a systematic breakdown of law enforcement, the second element suggested in the Complementary Protection Guidelines. The Tribunal is not satisfied that the laws are ‘not being routinely enforced’, although there are inadequacies in the police service caused by underfunding and lack of resources. The Tribunal is not satisfied that the applicant would be deprived of life because of arbitrary action or inaction by the state.
122. The Tribunal refers to its reasoning above as to the prospect of relocation where he might be held responsible for debts by loans sharks and associates and considers it to apply to complementary protection criteria as well.
123. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of this applicant being removed from Australia to Vietnam there is a real risk that he would be arbitrarily deprived of his life due to crime or withholding of protection, or for any other reason claimed.
Findings on complementary protection
124. The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam there is a real risk of significant harm.
[6] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3^rd edition, 1997
[8] English Oxford Living Dictionary, Macquarie Dictionary, Macquarie Library, Revised 3^rd edition, 1997
CONCLUSION
125. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

128. The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4433

5 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice