1721743 (Refugee)

1721743 (Refugee) [2018] AATA 1752 (3 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721743
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:3 May 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2018 at 9:04am
CATCHWORDS
Refugee – Protection visa – Vietnam – Social group – Person who owes money – Participant of Hui Scheme – Fear of physical harm by creditors – Subjected to verbal threats – Association with Khmer Krom ethnicity group – Economic conditions – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 423A, 424A,499
Migration Amendment (Protection and Other Measures) Act 2015, Schedule 1 Item 14, Item 15(4)
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIAC v MZYYL [2012] FCAFC 147
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam applied for the visa on 3 March 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm and the circumstances in which a person will be taken not to face a real risk of significant harm are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue advanced by the applicant in this case is whether he meets the refugee criterion or comes within Australia’s complementary protection obligations because:
· He fears harm from ‘creditors’ from whom he has borrowed money.
· He belongs to the Khmer Krom ethnic group.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age]-year-old married male. He was born in Tra Vinh Province, Vietnam.
The applicant has travelled to Australia on a passport issued by the Socialist Republic of Vietnam. He travelled as a holder of a [temporary] visa [or] [another temporary] visa [on] the following occasions:
· Arrived 27 March 2010 and departed 23 June 2010.
· Arrived 9 December 2016 and applied for the protection visa on 3 March 2017.
The applicant’s wife [lodged] a separate protection visa application.[1]
Substantive claims
[1] See MRD Decision Record 1723321.
The applicant provided the following information (unedited) in support of his protection visa application:
Question 89 Why did you leave that country(s)?
I left my own country because distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distruction of the global economy impact on the nations economy. Poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh conditions so I had to borrow money from relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Vietnam have problems like me, who borrowed money had been hit, injured and killed.
Question 90 What do you think will happen to you if you return to that country(s)?
If I return to my country, I will get caughtby creditor and could be beaten, injured or killed. They will searching me.
Question 91 Did you experience harm in that country(s)?
Yes I already experience harm in that country because I already received verbal threatened from them to hurting me. Besides that, I live in hardship (because the bad economy)
Question 92 Did you seek help within the country after the harm?
Yes but nothing happening because this is a matter of economy of the country (they consider as a personal problem)
Question 93 Did you move, or try to move, to another part of that country(s) to seek safety? No.
Give reasons why you did not try to move to another part of the country(s)
I did not try to move to another part of the country because this is a matter of socio-economic. I will experience the same problem even move to another place (inside that country)
Question 94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes I will live in harsh conditions, suffered discrimination for Tawainese women
Question 95 Do you think the authorities of that country(s) can and will protect you if you go back?
No because the authorities could not protect me because this is a matter of socio-economic. I will experience the same problem.
Question 96 Do you think you would be able to relocate within that country(s)?
No, unable to relocate because this is a matter of socio-economic. I will experience the same problem.
The delegate found that the applicant was not a refugee as defined by s.5H(1) of the Act and assessed his claims against the complementary protection criterion. The delegate had regard to country information regarding economic development, loan sharks and police protection in Vietnam and found the applicant was not a person to whom Australia has protection obligations and refused to grant the applicant a protection visa.
AAT merits review
On 14 September 2017 the applicant applied to the Tribunal to review the delegate’s decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.
On 19 February 2018 the Tribunal wrote to the applicant pursuant to s.424A of the Act. The letter informed the applicant in assessing his Application for a Protection visa (form 866C) the Tribunal noted that he declared that he did not receive any assistance in the completion of the form. The Tribunal also noted that the applicant signed the form and declared that the information supplied is complete and correct and up-to-date in every detail.
Specifically, the letter informed the applicant that in assessing his claims the Tribunal had become aware that his answers to questions 89 to 96 (detailed above) are worded identically to the answers provided by a number of other Vietnamese asylum seekers whose claims are currently before the Tribunal. The letter advised the applicant that subject to his comments, this would lead to the conclusion that his claims for protection are not genuine. If the Tribunal finds his claims are not genuine, then, on the current information before it, the Tribunal would find that he does not meet the criteria for grant of the protection visa and affirm the decision under review. The applicant did not respond to the Tribunal’s letter.
Tribunal hearing
The applicant took part in a hearing before the Tribunal on 6 March 2018. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant provided the Tribunal with the following documents in the Vietnamese language with English translations at the hearing. The applicant said he spoke to a Vietnamese lawyer who assisted him to present his claims:
·     ‘Loan Agreement’ dated [in] February 2018. The agreement purports to be signed by [Ms A] and is in the amount of [amount] VND (about $[amount] AUD) which was borrowed by the applicant and his wife from [Ms A]. (The applicant claimed that although the Loan Agreement purports to be executed by [Ms A], this person has the same name as his mother-in-law and they are two different people.)
·     ‘Confirmation Letter’ dated [in] March 2015, signed by [Ms A] and co-signed by [three other witnesses].
·     ‘Confirmation Letter’ dated [in] February 2018, signed by [Mr B] who claims to have loaned [amount] VND (about $[amount] AUD) and gold to the applicant and his wife.
·     ‘Commitment to Pay Loan’ dated [in] February 2018, signed by [two witnesses].
·     ‘Statement’ dated [in] February 2018, signed [by] (the applicant’s father-in-law), [(the applicant’s mother-in-law)] and [(a witness)]. The Tribunal notes that the document titled ‘Statement’ purports to be written by the applicant’s parents-in-law and largely repeats the information which is detailed in the document titled ‘Commitment to Pay Loan’.
Summary of new claims
The applicant made the following new claims for the first time at the Tribunal hearing.
In 2009 he married and travelled to Australia with his wife to visit his wife’s aunt. The aunt paid for the trip and sponsored them to visit her in Australia after they married. The applicant and his wife subsequently returned to Vietnam. Soon after the trip the applicant’s wife became pregnant and gave birth in late [year].
About four years after their child was born [his] wife suggested that they should start a ‘Hui Scheme – a mutual loan club’ while he continued helping his father-in-law work in the rice fields in Vietnam.
About a year or so after [he] and his wife became ‘master of Hui Scheme’. He claims that some subscribers (‘shareholders or creditors’) of the scheme did not make their financial contributions. For this reason he and his wife had to borrow money from outsiders at high interest rates to pay to other subscribers (the unsuccessful bidders).
Their parents helped them and used their land as collateral to secure a loan. Even with help of the parents there was insufficient money to make payments to others.
The creditors came around to their home and used ‘strong language and made threats of beating or even killing us’. The applicant and his wife had to run away and hide in Ho Chi Minh City leaving their child behind.
The applicant commenced working as [an occupation] in Ho Chi Minh City. The wages were just enough for food and rent with some savings to send home to support their child.
The applicant claims that creditors kept coming to their home and called them bad names and made threats. Their child was frightened at seeing strangers coming around.
His driving work did not go as well as expected. He had to pay fines to the police otherwise his driver’s licence would have been taken away. He was short of money and borrowed from friends.
Tribunal hearing
The applicant confirmed that he was a Buddhist. He was not a member of any organisation or political party in Vietnam. He has never been arrested or jailed in Vietnam.
The Tribunal questioned the applicant about the Hui Scheme. The Tribunal finds that the applicant was only able to provide limited information about the scheme and how it operated. The Tribunal told the applicant that it found his evidence vague and was surprised he could not provide further evidence. The applicant said that his wife was the person running the scheme and he would only help out. He said that he did not understand exactly how it worked. He said that about five subscribers did not make their contributions and ran away after they got their payments. He does not recall the dates.
The Tribunal asked the applicant if he reported the matter to the police. The applicant said that he did but the police did not solve the problem because Hui Schemes were not legal.
The Tribunal questioned the applicant why he fears returning to Vietnam. The applicant said he borrowed money and cannot repay the loan. The creditors have threatened to kill him and his wife. He claims the threats were made by [Ms A], who has the same name as his mother-in-law. He does not recall the others but claims there were a lot of them. He claims that recently thugs were hired to come to his house and threaten his family in Vietnam.
The Tribunal asked the applicant to explain when [Ms A] threatened him. The applicant said he was threatened in his home. The Tribunal asked the applicant if he could explain what words were spoken by [Ms A] when she made the threats. The applicant said the threats were made to his wife and he was not at home at the time. He claims his child was also threatened.
The Tribunal asked the applicant if anyone had made threats directly to him. The applicant said he was threatened by ‘thugs’ who were paid to threaten him. They were representing the people who lost money. He claims one of the thugs was called ‘[name]’.
The Tribunal asked the applicant to explain why the person who threatened his wife and child would now agree to co-operate and sign a document after he has left Vietnam and was in Australia. The applicant said that his parents-in-law were in town and were able to obtain the agreement.
The Tribunal referred the applicant to the other Loan Agreement which purports to be signed by [Mr B]. The applicant said [Mr B] did not threaten them she only raised her voice.
The Tribunal asked the applicant what he fears would happen to him if he returns to Vietnam. The applicant said he would be killed because people are after their money and came to his home many times and smashed his home. He is aware of other people in similar situations being harmed and the authorities did nothing. The Tribunal asked the applicant if he could be more specific about the ‘other people’ he was referring to. The applicant said it was in the media.
The Tribunal notes that evidence he provided in support of his claims at the hearing is different from that detailed in his protection visa application. For example, in his protection visa application there is no mention of the Hui Scheme which is now central to his claims. The applicant said that his wife knew all about the Hui Scheme and he only helped out.
The Tribunal told the applicant it was concerned he only provided the supporting documents and details of his claim on the morning of the Tribunal hearing and not when he lodged his protection visa application. The applicant claimed he provided the evidence late because his English language skills were poor.
The Tribunal referred the applicant to his earlier evidence that he and his wife were sponsored by the aunt to come to Australia. The Tribunal asked the applicant why he did not ask the aunt to help pay his debts in Vietnam. The applicant said the aunt said she would only sponsor them to come to Australia.
The Tribunal told the applicant it was concerned the [Ms A] Loan Agreement and Confirmation Letter purportedly written by [Mr B] may not be genuine because they were created shortly before the hearing (28 February 2018) and were not contemporaneous. The Tribunal also notes that the documents do not detail when the loan was made or term of the loan. The applicant maintained the documents were genuine.
The Tribunal referred the applicant to issues raised in the s.424A letter. The Tribunal told the applicant it was concerned that the claims in his protection visa application were identical to those made by other Vietnamese asylum seekers who had made claims for protection. The applicant said he does not know what others put in their forms. In particular the Tribunal referred the applicant to his answer to question 94 of his protection visa application (detailed above). The applicant said it was a typographical error. The applicant said the answer should state that he and his wife will face discrimination and hardship just ‘like in a Taiwanese movie’.
The Tribunal asked the applicant why he thinks the police will not be able to protect him in Vietnam. The applicant said many things are written in the newspaper about the authorities not protecting people in Vietnam. The Tribunal asked the applicant if he could be more specific. The applicant said he has seen it on [social media]. He did not provide any further evidence.
The Tribunal asked the applicant if he had ever suffered harm in Vietnam. The applicant said he was beaten up. The Tribunal noted that he had not mentioned that before in his claim. The applicant said he was beaten in Saigon. The Tribunal asked the applicant if he could explain when he was beaten and by whom. The applicant said he did not know the names. He claims the Hui members knew his address. He got a wound to his eye. He went to a doctor but does not have a medical report. He did not report the beating to the police.
The applicant said he had problems with the authorities in Vietnam when he and his wife moved to Saigon. He worked as [an occupation] and would be stopped by roadside police for contravening traffic laws. For example his [vehicle] was long and when he turned the corner he would go a little over on the other side of the road because the lane for the [vehicles] was very narrow. The police would demand a bribe. If he did not pay the bribe they would take away his licence.
The Tribunal referred the applicant to his evidence and noted that he claims to fear harm in Vietnam from creditors because of a private dispute and not for the reasons detailed in s.5J(1)(a). In response the applicant said he took part in an Australia Day ceremony on two occasions because he belonged to the Khmer Krom group and raised their flag. The Tribunal told the applicant that it was concerned that he had not raised this evidence before and was uncertain of what he was claiming or how it was relevant to his claims.

The applicant said it was a march in opposition to the Australian government asylum seeker policy. The applicant said it relates to politics and the authorities asked him to come and there were many monks. He claims he will have trouble when he returns to Vietnam. The Tribunal told the applicant that it has to exercise caution when assessing new claims late in the hearing process. The Tribunal invited the applicant to provide a written statement setting out further details of his new claims. The applicant did not provide any further evidence.
Findings
The Tribunal finds that the applicant has travelled to Australia as the holder of a valid passport issued by the Socialist Republic of Vietnam. The Tribunal has assessed the applicant’s claims against Vietnam as the receiving country.
In summary the applicant claimed at the hearing that in about 2014 he and his wife started a Hui Scheme. Subscribers of the scheme failed to make repayments and the applicant and his wife were forced to borrow money. They now fear harm from creditors who have threatened to kill them. He claims the police cannot assist them because Hui Schemes are not legal in Vietnam. He also claimed he fears harm because of his association with the Khmer Krom ethnic group.
Credibility of claims
The Tribunal has a number of concerns about the applicant’s evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his experiences in Vietnam, his reasons for leaving Vietnam and his fears about returning to Vietnam. The Tribunal’s concerns are discussed below.
The Tribunal finds the applicant has made new claims and provided new evidence after the primary decision was made in this matter. Applicants are expected to present their case in full before the primary decision maker and not wait until after the primary decision has been made. Section 423A, which applies with respect to protection visa applications made on or after 14 April 2015, requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.^[2] In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s.423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. This effectively requires applicants to present all claims and evidence to the primary decision maker, unless they have a reasonable explanation for not doing so.
[2] Section 423A of the Act was inserted by item 14 of Schedule 1 to the Migration Amendment (Protection and Other Measures) Act 2015 and, by operation of item 15(4) to that Schedule, applies to protection visa applications made on or after 14 April 2015.
In assessing the applicant’s claims the Tribunal accepts that protection visa applicants can be exploited and taken advantage of by unscrupulous migration agents or members of their own community who pose to act as agents.[3] Having said that, the Tribunal is also aware that some applicants seek out advice and engage agents to facilitate migration outcomes or to simply prolong the time they can stay in Australia. The applicant said he only obtained migration advice shortly before the Tribunal hearing. He claims a friend assisted him with the original application because his English was not good. He does not know if the lawyer is a registered migration agent but he works with the Vietnamese community. The documents were emailed to him by his family from Vietnam.
[3] For example see:
The Tribunal finds that limited English language skills and lack of migration assistance may in some instances provide an explanation why applicants make new claims after the primary decision has been made. The Tribunal is concerned however when new claims are made which are inconsistent with those in the original application.
While the Tribunal is prepared to accept that the applicant may have limited English language skills, the Tribunal also finds this is a difficulty faced by many applicants appearing in this jurisdiction. The Tribunal also notes that in his protection visa application (question 29) the applicant declared that he can read and write in English.
The Tribunal also finds that this is the applicant’s second trip to Australia. He has previously applied for two [temporary] visas to visit his wife’s family who are Australian citizens. While the Tribunal accepts the applicant has not applied for a protection visa in the past the Tribunal finds that he is a person who has some past experience with dealing with the Department and travelling to Australia. The Tribunal also finds that the applicant had the option to obtain assistance from a professional interpreter and/or migration agent soon after he arrived in Australia if he had a genuine fear of persecution. The Tribunal notes that the applicant arrived in Australia on 9 December 2016 but did not make his application for the protection visa until 3 March 2017, six days before his [temporary] visa expired.
As detailed in the s.424A letter the Tribunal is also aware that the applicant’s original claims are identical to those lodged by many other Vietnamese nationals who have lodged protection visa applications with the Department. In assessing the applicant’s evidence the Tribunal does not find it plausible that the applicant’s claims can be genuine in circumstances where they are worded in identical terms to those made by a number of other Vietnamese asylum seekers who have also lodged claims with the Department.
The applicant did not respond to issues raised in the s.424A letter. While the Tribunal acknowledges that the original claims refer to the applicant having to borrow money from relatives and his fear of harm from creditors, the original claims are directed at the economic conditions in Vietnam which he claims caused him to go into debt. There is no reference to the Hui Scheme or any reference to the supporting documents which were produced at the hearing for the first time.
The Tribunal also notes that when it sought clarification about his original claims (for example his answer to question 94) the applicant’s evidence was not credible and he could not provide a meaningful explanation why he would be referring to Taiwanese women in his application.
The Tribunal also finds the applicant provided inconsistent evidence about the threats he experienced in Vietnam. For example, the Tribunal notes that question 91 of the protection visa (detailed above) asked the applicant if he has experienced harm in Vietnam. At the hearing he said he was beaten; however, according to his application form he only experienced verbal threats and lived in hardship.
The Tribunal is also concerned about the authenticity of the documents produced by the applicant in support of the application. Firstly, none of the supporting documents were provided to the Department when he made his protection visa application. Secondly, the Tribunal finds that the [Mr B] Confirmation Letter and the Loan Agreement purporting to be made by [Ms A] are not contemporaneous and are dated February 2018. The Tribunal would have expected that if the applicant had in fact borrowed money sometime in 2015, these documents would have been contemporaneously dated and not created three years later after the applicant had departed Vietnam and was in Australia and had defaulted on the loan. Thirdly, the Tribunal does not find it plausible that the person who allegedly threatened to kill the applicant and his family ([Ms A]) would now agree to write and sign a loan agreement in 2018 and provide it to the applicant’s parents in circumstances where the applicant is in Australia.
The Tribunal is not satisfied that the applicant has a reasonable explanation as to why the claims were not raised or evidence not presented before the primary decision.
In conclusion, the Tribunal finds the claims made by the applicant are not genuine. The Tribunal finds that after the Department refused his application, the applicant has sought to manufacture further false evidence in support of his protection visa application.
Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm if he returns to Vietnam because he fears threats from ‘creditors’ from whom he and his wife have borrowed money.
Khmer Krom
The Tribunal has also considered the applicant’s claim that he belonged to the Khmer Krom ethnic group and raised their flag during the Australia Day march.
Country information provides the following information about the Khmer Krom:
The Khmer Krom describe themselves as the “Cambodians of the South”. Kampuchea Krom was the southernmost territory of the Khmer Empire. Once known as (French) Cochin China, it is now located in the South-western part of Vietnam, covering an area of 89,000 square kilometres bordering Cambodia to the north, the Gulf of Siam to the west, the South China Sea to the south, and the Champa’s territory to the northeast. Prey Nokor, later Saigon and now Ho Chi Minh City, was one of the most important commercial cities in Kampuchea Krom.
…
[The Khmer Krom] are denied the right to freely practice their religion and pass on their culture, and are generally treated as second-class citizens. [4]
[4] UK Home Office Country Policy and Information Notes Vietnam : Ethnic and religious groups March 2018 >
The Tribunal has had regard to country information which reports that a Khmer Krom Buddhist monk was arrested by the Vietnamese authorities in May 2013. In March 2013 the local Vietnamese authorities ordered Khmer Krom monks to defrock or face imprisonment, alleging that they were spreading ‘fabricated information’ abroad about human rights violations in Vietnam through interviews with foreign media and contact with the Khmer Krom Federation, a US-based advocacy group.[5]
[5] Amnesty International Index 4 April 2018 >
When questioned about its relevance he said it was a political claim but could not provide a meaningful explanation about his involvement and how it was relevant to his claims for protection in Australia. The Tribunal notes the applicant only raised this claim when the Tribunal raised the criteria in s.5J(1)(a). The Tribunal finds that the applicant had not previously made any reference to the Khmer Krom. The applicant has not provided any explanation why he has not previously mentioned this evidence. The applicant did not provide any further evidence after the hearing in support of this claim. The Tribunal also notes that in his protection visa application the applicant declared that he belonged to the Vietnamese ethnic group and did not claim to belong to any ethnic minority. When questioned at the beginning of the hearing he said that he was not a member of any organisation or political group in Vietnam. The Tribunal finds the applicant’s claims in relation to the Khmer Krom are not genuine.
The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm if he returns to Vietnam in the reasonably foreseeable future because he is associated with the Khmer Krom ethnic group or because he took part in protest activity in Australia. The Tribunal finds that the applicant’s fear of persecution because of his race and/or his actual or imputed political opinion is not well-founded.
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).
The Tribunal has also considered the applicant’s claims having regard to the complementary protection criterion.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition: MIAC v SZQRB [2013] FCAFC 33.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
As detailed above the Tribunal does not accept the applicant and his wife operated a Hui Scheme, went into debt and fear harm from creditors in Vietnam. The Tribunal finds the applicant has manufactured these claims. The Tribunal also does not accept that the applicant has any association with the Khmer Krom group in Australia and/or Vietnam. It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for reasons of his race, actual or imputed political opinion as a necessary and foreseeable consequence of his being removed from Australia to Vietnam.
The Tribunal accepts the applicant worked as [an occupation] in Vietnam and may have had to pay a bribe to the police when he contravened traffic offences. Country information confirms that corruption is endemic in Vietnam and is an unfortunate aspect of daily life in Vietnam.[6] The Tribunal does not accept this amounts to significant harm. The Tribunal does not accept that he has come to the adverse attention of the authorities in Vietnam because he has committed traffic offences and has had to pay a bribe in Vietnam.
[6] Vietnam is ranked 115 out of 188 countries in the latest United Nations Human Development Index (HDI). Transparency International’s 2016 Corruption Perceptions Index (CPI) ranked Vietnam 113 out of 176 countries; compared with Cambodia at 156, Laos at 123, Thailand at 101 and China at 79. DFAT Country Information Report Vietnam [2.10].
Having considered the claims both individually and cumulatively, the Tribunal is not satisfied 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 he will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in 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
…
(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.
…

See also: Vietnam 40 years on: how a communist victory gave way to capitalist corruption

Key Legal Topics

Areas of Law

Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Standing
Natural Justice

Actions

Download as PDF Download as Word Document

Citations

1721743 (Refugee) [2018] AATA 1752

Cases Citing This Decision

Cases Cited

Statutory Material Cited

MIAC v MZYYL [2012] FCAFC 147

[2018] AATA 1752

3 May 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice