1721665 (Refugee)

1721665 (Refugee) [2022] AATA 1379 (11 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721665
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Amanda Mendes Da Costa
DATE:11 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2022 at 11.12am
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from money lender, general economic conditions and corruption – failed business venture – no repayments of interest or principal – threats and relocation – credibility – no demands or steps by money lender to recover money for a long time, or harm to family members – delay in applying for protection visa – work while unlawful non-citizen – no attempt to regularise migration status – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FRC 15
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.
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 8 September 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 9 December 2016. The delegate refused to grant the visa on the basis that he was not a refugee and was not owed protection by Australia.
The applicant appeared before the Tribunal on 10 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.
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.
Country of Nationality
On the Departmental file is a copy of the applicant’s Vietnamese passport, the Tribunal finds that the applicant is a national of Vietnam. As the Tribunal has found that the applicant is a national of Vietnam, the Tribunal also finds that Vietnam is the applicant’s country of nationality for the purposes of s.36(2)(a) and the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).
Third Country Protection
With no evidence to the contrary, the Tribunal finds that the applicant does not have a right to enter or reside, either temporarily or permanently in any safe third country for the purposes of s.36(3) in the Act.
Applicant’s migration history
Departmental records show that the applicant’s migration history is as follows:

18 August 2009

The applicant was granted a Sponsored Family Visitor UL 679 visa, valid until 26 December 2009

[September] 2009

The applicant arrived in Australia

9 December 2016

The applicant lodged an application for a XA-866 protection visa

13 December 2016

The applicant was granted a Bridging visa C

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicants meets the requirements of s 36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s protection claims
The applicant’s protection application includes the following protection claims:
·He believes that the Vietnamese economy is run inefficiently and prone to corruption, with mounting debts and high unemployment.
·He obtained a loan from a money lender (loan shark) and cannot repay it because of the high unemployment he cannot obtain a higher paid job.
·The money lender has verbally threatened him that they will harm him if he does not pay the debt.
·He fears returning to Vietnam as the loan shark will find him and harm him.
·He cannot move to another province as he believes that they will find him as he has moved elsewhere before travelling to Australia and they found him.
Country information
The Department of Foreign Affairs and Trade (DFAT) Report Vietnam 2022 includes the following country information:
Economic Overview
a.According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID-19 pandemic. This is reflected in a growing middle class and increasing urbanization.
Employment and welfare
b.The official unemployment rate is about 2.4 per cent according to ILO data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID-19 pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.
c.Vietnam is rapidly urbanising. The services sector has become the largest part of the economy at about 50 per cent of GDP. Vietnam has become a popular destination for manufacturing as wages are low and there is a young, growing and increasingly educated workforce. Some multinational companies looking to diversify their outsourced manufacturing have sought out Vietnam as an alternative location to other countries in the region for manufacturing, creating jobs for young people.
d.The poor are eligible for a social welfare benefit from 60 years of age with greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector. Given the young population and high rates of informal work, a large number of people are not covered by any pension scheme. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
e.Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount that they would receive would be unlikely to sustain them without other means of support.
People who owe money to loan sharks
f.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.
g.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.
h.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.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.
j.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.
k.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 World Bank’s overview of the Vietnamese economy (last updated 17 November 2021) includes the following information:
Vietnam has been a development success story. Economic reforms since the launch of Doi Moi in 1986, coupled with beneficial global trends have helped propel Vietnam from being one of the poorest nations to a middle-income economy in more than one generation. Between 2002 and 2020 GDP per capita increased 2.7 times, reaching almost US$2,800. Over the same period, poverty rates (US$1.90/day) declined sharply from over 32 percent in 2011 to below 2 percent.
Thanks to its solid foundations, the economy has proven resilient through different crises, the latest being Covid-19. Vietnam was one of only a few countries to post GDP growth in 2020 when the pandemic hit. However, the Covid-19 Delta variant has dealt a shock to Vietnam and GDP is estimated to grow between 2 and 2.5 percent in 2021, about 4 percentage points lower than the world average[1].
[1] oral evidence
The applicant was born in [Village], Huyen Vinh Thuan District in Kien Giang province in the Mekong River Delta region of Vietnam. He was educated in [Village] where he completed Year [grade] and lived until he arrived in Australia in 2014. After completing secondary school he commenced work as an agricultural worker in the local rice fields and also undertook odd jobs.
The applicant was married for 23 years, divorcing in December 2012. He has two children [who] are currently undertaking tertiary studies in Vietnam. The applicant’s parents and older brother continue to live in [Village]. The applicant has not re-partnered since his divorce.
The applicant adopted the protection claims made by him in his visa application form. He told the Tribunal that before he departed Vietnam he had borrowed [amount] Million Vietnamese Dong[2] (VND) from an illegal moneylender. This money was used to purchase and operate his own business which involved the farming of [Produce].
[2] This is the equivalent of approximately AUD[amount].
The money was borrowed approximately 24 years ago (in 1998) and the applicant operated the business for approximately four years before it ceased trading due to its poor profitability. The applicant explained that whilst the business was operating he was not in a financial position to repay either the principal or interest being charged on the loan. The interest rate charged on the loan was 15 per cent per month and by the end of four years the principal and interest owed had accumulated to had accumulated to approximately [amount] Billion Vietnamese VND[3].
[3] This is the equivalent of approximately AUD[amount].
After his business failed, the applicant returned to working as a labourer in the local rice fields. He remained in this occupation until he departed for Australia. Due to his limited salary he was unable to repay any of the debt he owed during the remainder of his time in Vietnam. In 2008 the moneylender from whom he had borrowed the money approached him about his lack of repayment of either the principal or the interest. The moneylenders threatened to cut his ears and hands or kill him if he didn’t repay the debt. As he was unable to repay the debt and scared that the moneylenders would hurt or kill him, the applicant went into hiding. When questioned about his whereabouts whilst he was hiding, the applicant said that for nearly a year he just moved around to avoid the moneylenders. During this period the applicant was supported by his parents and older brother. He eventually decided to relocate to Australia and his travel here was sponsored by his siter-in-law. When questioned by the Tribunal about his reason for remaining in Australia for seven years without a valid visa, the applicant explained that as he had a “big debt” in Vietnam he decided to remain in Australia. During his stay in Australia, the applicant has worked on farms and undertaken “odd jobs”. For the past four years he been working in a factory and renting a room in a share house. Although the applicant has been sending regular child support payments to his children in Vietnam he said he has not been in a position to make any repayments of his debt in Vietnam.
The applicant said that the moneylender had sent people to visit his children in Vietnam and advised them that if their father did not repay his debt, the moneylender would send people to Australia to find the applicant. This occurred more than a month before the hearing. The applicant has also been telephoned by a friend in Vietnam who advised him that he must be very careful as the criminal gangs in Vietnam (who are associated with the moneylender) may find him in Australia. Despite these warnings no-one has approached the applicant in Australia about his debt.
The Tribunal discussed with the applicant the country information contained in the DFAT report and the World Bank overview (set out in paragraphs 16 and 17 of this decision). In relation to the information about the Vietnamese economy, the applicant explained that if a person in Vietnam does not have a university qualification, their monthly wages are between two and three Million Vietnamese Dong which is substantially lower than those in Australia. In relation to the information about the activities of loan sharks, the applicant said that he accepted this information, which he described as “real”.
The Tribunal also discussed with the applicant the assertion in his protection application that he feared returning to Vietnam because the country is “prone to corruption”. When the Tribunal invited the applicant to explain this claim, the applicant said that he did not wish to make any comment about the claim.
Tribunal suggested to the applicant that it was concerned about his account of the moneylender not demanding any repayments of the debt over a 10- year period and found it difficult to accept that despite making no payments over that period, the moneylender left him alone. In response, the applicant explained that he always promised to repay the moneylender when his business was doing well but they couldn’t wait any longer. When the Tribunal suggested that it found it difficult to accept that the moneylender waited six years after the failure of the applicant’s business to demand repayment, the applicant said that he just kept asking for more time in which to rebuild his business and repay the debt.

The Tribunal also discussed with the applicant, his decision to remain in Australia as an unlawful non-citizen for seven years after his Student visa expired and his failure to approach the Department to discuss his migration status and his fears about returning to Vietnam. The applicant explained that he was too scared to approach the Department because he feared that he would be returned to Vietnam. When asked about the timing of him making the protection application, the applicant said that he was not aware about protection visas until someone explained this to him in 2016. The Tribunal further discussed the applicant’s use of a migration agent in Vietnam who assisted him to apply for the Sponsored Family Visa in 2009. When the Tribunal suggested to the applicant that he could have approached a Vietnamese speaking migration agent in Australia to advise him after his Sponsored Family visa expired, the applicant said that he wasn’t aware of protection visas until 2016 and he was also very afraid that he would be sent back to Vietnam.
The applicant conceded that when he originally came to Australia he was aware that his Sponsored Family visa permitted him to remain lawfully in Australia until 26 December 2009. When the Tribunal suggested that this awareness may lead it to form the view that he came to Australia in order to wok and earn money, rather than because he scared to stay in Vietnam, the applicant said that he was afraid of being persecuted as a result of his failure to repay his debt to the moneylender.
When the Tribunal suggested to the applicant that he could relocate within Vietnam if he returned to that country, the applicant replied that this would not be possible as he could not run away from criminal gangs and members of the underworld in Vietnam as they are active throughout Vietnam. He said that In Vietnam a person who has come to the attention of criminal gangs and the underworld can only avoid then for a short period of time as they always look for them and have contacts in every region of the country. The Tribunal asked the applicant about the basis for his belief that the person who lent him money was connected to criminal gangs or members of the underworld. In response, he explained that the friends who had introduced him to the moneylender had subsequently advised him that the moneylender was linked to a criminal gang.
The Tribunal further discussed with the applicant, the option for him to make a complaint to the Vietnamese police (if he returned to Vietnam) about the activities of the person who lent him the money. Although he conceded that he could make such a report to the police, the applicant explained that the police could not protect him 24 hours a day.
The applicant told the Tribunal that he continued to fear returning to Vietnam as he had not repaid any of the debt he owed to the moneylender and had been threatened with physical harm and death if he did not repay the money owed.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All of this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.
The Tribunal does not have responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim (s.5AAA of the Act) nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[4]
[4] MIEA v Guo 91997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FRC 15 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[5] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[5] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.
If the applicant’s account appears credible, he or she should unless there are good reasons to the contrary be given the benefit of the doubt.[6] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
FINDINGS AND REASONS
[6] The United Nations High Commissioner for Refugees’ handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
Protection as a refugee under s.36(2)(a)
Having considered the applicant’s protection visa application and the evidence before it, the Tribunal makes the following findings.
The Tribunal accepts that the applicant was born in [Village], Vietnam where he lived and worked as a farm labourer and factory worker. He also operated a [farming] business for approximately four years. The Tribunal is further satisfied that the applicant is a divorced man with two adult children living in Vietnam.
Whilst the Tribunal notes that country information indicates that in recent years the Vietnamese economy has shown strong improvement and has a growing middle class, it also accepts that for those with lower paid jobs their wages are significantly less that those paid in Australia. The Tribunal further accepts that unemployment levels in Vietnam are considerably higher for lower-skilled workers. However, the Tribunal notes that the applicant was employed throughout the period he lived in Vietnam, after completing his secondary education.
The applicant claims that in 1998 he borrowed [amount] Million VND from an illegal moneylender in Vietnam. None of the principal and interest has been repaid and the moneylender did not make any demands for repayment of the debt until 2008. The Tribunal does not accept as credible or convincing, the applicant’s assertion that the moneylender allowed the debt to accrue without taking steps to recover their money over such a lengthy period of time. The Tribunal further does not accept that the moneylender was satisfied with the applicant’s promises during this period that he would pay both the principal and interest at a later date, particularly in circumstances where the applicant’s business ceased trading four years after the money was borrowed. The Tribunal considers that an illegal moneylender who lent a substantial sum of money with a usurious interest rate, would not be content to allow the borrower to make no repayments for a 10-year period without demanding repayment of at least part of the debt.
These findings cause the Tribunal to doubt the applicant’s general credibility as a witness and leads it to reject his claim that he borrowed [amount] Million VND from an illegal moneylender in Vietnam. Accordingly the Tribunal does not accept that he currently owes any amount to an illegal moneylender nor that he has been threatened by that moneylender in either Vietnam or whilst living in Australia.
The Tribunal has a further concern about the applicant’s explanation for his failure to make any attempt to regularise his migration status in Australia for over seven years whilst he remained an unlawful non-citizen. Given its findings regarding his claims to owe money to any illegal moneylender in Vietnam and being the victim of threats by that moneylender due to non-payment of the debt, the Tribunal does not find as credible or convincing his assertion that he was not aware that he could apply for a protection visa and feared being returned by Australian authorities to Vietnam because of his debt. The Tribunal considers that if the applicant had feared returning to Vietnam (as he claimed) he would have taken steps before he did to regularise his migration status.
The Tribunal has also considered the applicant’s visa history and his stated reasons for the delay in making an application for a protection visa during the hearing. The Tribunal notes that it is a legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness or at least the depth of the applicant’s claimed fear of persecution (per Heerey J. Seladurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal considers that the applicant’s delay in applying for a protection visa is considerable and significant. The applicant arrived in Australia in August 2009 and became an unlawful non-citizen in December 2009. The applicant remained an unlawful non-citizen for seven years.
Based on the adverse credibility findings, the Tribunal does not accept that:
·The applicant obtained a loan from a money lender (loan shark) and cannot repay it because of the high unemployment he cannot obtain a higher paid job.
·The money lenders have verbally threatened him that they will harm him if he does not pay the debt.
·The applicant fears returning to Vietnam as the loan sharks will find him and harm him.
·The applicant cannot move to another province as he believes that they will find him as he has moved elsewhere before travelling to Australia and they found him.
The Tribunal has also considered the applicant’s assertion that he fears returning to Vietnam because the country is “prone to corruption”. However, given that when invited to do so, the applicant chose not to provide the Tribunal with any evidence supporting this claim, it is not satisfied that the applicant has any fears based on any corruption in Vietnam.
During the hearing the applicant explained that his delay in applying for a protection visa was due to his lack of awareness of protection visas and his fear of being harmed if he returned to Vietnam. The Tribunal does not accept that these reasons satisfactorily explain the delay in applying for a protection visa. Of specific concern to the Tribunal is his admission that unlawful non-citizens are often detained and deported yet he did not take any actions for nearly seven years and risked being forcibly removed back to his country of reference where he claimed he had a real chance or real risk of being harmed or killed. While the applicant does not have a tertiary education and limited resources, he does have the capacity to understand the consequences of residing unlawfully or such a long period of time and had previously used the services of a migration agent in Vietnam. Accordingly, the Tribunal considers that if the applicant had been fearful of returning to Vietnam (as claimed) he would have approached the Department or sought advice from a migration agent to regularise his migration status, and not remained an unlawful non-citizen for approximately seven years.
As it is the Tribunal’s assessment that the applicant is not a credible or reliable witness because the Tribunal has found that the oral evidence to be unpersuasive as well as manufactured regarding his claims of owing a debt to a moneylender and being threatened with harm if he does not repay the debt, or for any related or combined reasons mentioned in section 5J(1)(a).
Having considered all the matters and claims relevant to the applicant’s claims for protection, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of persecution or a real risk of significant harm for any reason, as a result of returning from Australia to his country of nationality within the foreseeable future.
Based on these cumulative adverse credibility findings, the Tribunal finds that the applicant does not have a real chance that, if returned to Vietnam, he would be persecuted for one or more of the reasons mentioned in section 5J(1)(a) arising from the applicant’s manufactured claims about owing money to an illegal moneylender and being threatened with harm if he failed to may repayments.
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).
It follows that the Tribunal is not satisfied that 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 the applicant will suffer significant harm, as required by s.36(2)(aa) based on the same overall credibility findings by the Tribunal about the debt owed to an illegal moneylender and the threats made to him in circumstances where he has failed to repay either the principal or interest.
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). Given the Tribunal’s findings regarding the applicant’s general credibility, it is not satisfied that he has borrowed money from an illegal moneylender in Vietnam which he cannot repay. Nor does the Tribunal accept that the moneylender has verbally threatened him with harm if he does not repay the debt and that the moneylender will find him if returns to Vietnam, whichever part of the country to which he relocates. Accordingly, 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Mendes Da Costa
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.
…

[2022] AATA 1379

11 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

18 August 2009	The applicant was granted a Sponsored Family Visitor UL 679 visa, valid until 26 December 2009
[September] 2009	The applicant arrived in Australia
9 December 2016	The applicant lodged an application for a XA-866 protection visa
13 December 2016	The applicant was granted a Bridging visa C