1723214 (Refugee)

1723214 (Refugee) [2024] AATA 2383 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1723214

COUNTRY OF REFERENCE: Vietnam
MEMBER:Mary Sheargold
DATE:26 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2024 at 12:19pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – no Convention nexus – victim of loan sharks – fear of killing – fear of torture – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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. He first came to Australia [in] September 2014 holding a [student] visa. That visa was cancelled on 3 December 2014 as the applicant was found not to be a genuine student. He became an unlawful non-citizen until making his application for protection on 9 December 2016; he was granted a Bridging Visa C on 13 December 2016 and that bridging visa remains in effect at the time this decision was made.
The applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
However, torture 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 ICCPR.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Under s 36(2B)(a) 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 it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
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) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
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.
The Tribunal has considered these Guidelines along with the DFAT Country Information Report on Vietnam most recently revised and published on 11 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
[The applicant’s] Vietnamese nationality is not in issue. He provided a copy of his passport issued by the Immigration Department, Socialist Republic of Vietnam, valid from [2013] to [2023]. The Department accepted his claimed identity and nationality set out in his passport, as does the Tribunal. The Tribunal finds that Vietnam is [the applicant’s] receiving country for the purposes of assessing his protection claims.
Relevant background, claims and evidence
[The applicant] is [an age] year old Vietnamese national who first arrived in Australia [time period specified]. He travelled alone, with his parents and then [age] year old sister remaining in Vietnam. He told the Tribunal that he had come to Australia to study and earn money to send home to his parents to help them repay a substantial loan they had taken out to fund his trip. [The applicant] claims he met a [Nationality 1] person in Australia who prepared his application for him, but that this person, who he could not name, did not follow the correct process and [the applicant’s] student visa ended up being cancelled. [The applicant] states he was then introduced to a lawyer in [Suburb 1], but stated he did not know the lawyer’s name and had only liaised with the lawyer’s assistant who he knew as [Person A]. He believes that [Person A] and the firm that employed [Person A] prepared and filed this protection visa application on his behalf.
[The applicant] told the Tribunal that his parents operated a [product 1] trading business, and that he worked on the family’s [product 1] farm outside of school hours. [The applicant] claims that his parents’ business suffered heavy losses one year due to purchasing [product 1] at a high price that they were later forced to sell at a low price. [The applicant’s] evidence is that this heavy loss coincided with his family’s decision to send him to Australia to try and earn money. [The applicant] claimed that his parents had to borrow money from the black market to keep the [product 1] trading business going, and that they also borrowed enough money for [the applicant] to come to Australia to complete Year 12 then go on to further study.
However, that plan did not come to fruition. [The applicant] stated that while he was a good student in Vietnam, on arriving in Australia, he attempted to undertake an English language course in [State 1] but found his English skills were not adequate to cope. [The applicant’s] evidence is that after several weeks of struggling, the school suggested [the applicant] would be better off returning to Vietnam to improve his basic English skills and to complete high school there. However, [the applicant] felt he could not return because of the significant amount of money his parents had invested in him coming to Australia, and he decided that the only way to earn enough money to have any chance of repaying the debts his parents had amassed was to stay in Australia and to try and find work.
[The applicant] admitted to remaining in Australia unlawfully at that time, and explained he had difficulty finding work as an unlawful non-citizen, as he could only muster up enough casual work to cover the cost of rent and basic living expenses. He had not been able to save any money to send to his family in Vietnam. [The applicant] claims his parents had been approached by the loan sharks several times seeking payments and stating that they would kill [the applicant] if he returned to Vietnam without their money. While [the applicant’s] evidence is that his parents have been able to maintain the interest payments on the loan, even without [the applicant’s] regular assistance, he stated that they have not been able to pay the capital because [the applicant] has not found a good enough job to help them do so.
At present, [the applicant] continues to engage in a range of casual employment including work [in specified roles], and farm work, but claims he never has more than 2-3 days’ worth of work in a row. He stated that prior to the Covid-19 pandemic, he had bought a car and worked as an [occupation 1], but that the pandemic had a huge financial impact on his parents so he sold the car, repaid the friend from whom he borrowed money to purchase the car, and sent his parents the balance of money, around AU$6,000 or VND 90,000,000, which he states they put towards payment of the black market loan.
[The applicant] believes his family borrowed VND [amount] to cover the cost of the business losses, as well as all the applications, fees and procedures required to bring him to Australia. He states he studied at [College 1] in [State 1], and that his family paid approximately $20,000 to $30,000 for his course. He claims he was not entitled to any refunds on the course fees despite discontinuing his study within weeks of arriving in Australia. [The applicant] realised on arriving in [State 1] that the local Vietnamese community was very small, and decided he would have more opportunities to find work if he relocated to Melbourne, so he appealed to the [local] Vietnamese community to help fund his air ticket to Melbourne. He has remained in Melbourne since 2015.

[The applicant] told the Tribunal that he did not have a firm plan on coming into Australia other than to earn money to help repay the family’s debts. He stated that his family understood that he would be able to work while holding a student visa and believed that he would be able to find a part time job easily. He stated that his plan had been to improve his English first, then hopefully find a vocational course to help him attain good employment in the future, but “then things did not happen as we thought.”
When questioned as to how he had planned to fund his continued education in Australia given that he had only prepaid his English language course, [the applicant] stated that he intended to find part time work, that he is a hard working person willing to work, and that he would work as long as he would have work to do. He struggled to find work but eventually came across [an occupation 2 business] run by a Vietnamese person who sympathised with his situation and employed him as a cleaner before teaching him some basic skills in [occupation 2]. He remained in that job for 3 weeks before relocating to Melbourne.
[The applicant] later revealed that his younger sister was sent to [Country 1] around 3-4 years after he left Vietnam, purportedly purchasing her air ticket using funds that [the applicant] had sent back to his parents over the years. [The applicant] stated that his sister could not come to Australia because he had been living unlawfully at that time and he would not be able to look after her. He stated that his sister was not able to work in [Country 1] to help his parents pay back their debts because she is not in a good physical condition. He told the Tribunal that despite her poor physical health, their parents had allowed her to go to [Country 1] because she wanted to help the family repay their debts.
[The applicant] stated that he has chosen to remain single while living in Australia, because he is focused on repaying his family’s debts first before he engages in any other activities here. He is a committed Catholic and attends weekly Mass, usually in Vietnamese, at [Church 1], or another local church in [Melbourne] where Masses are conducted in Vietnamese.
[The applicant’s] parents no longer work or operate their business. [The applicant] told the Tribunal that his father broke his leg, and his mother is unable to work because of poor health; she has many diseases. [The applicant] is in contact with his parents nearly every day; he stated that he misses them dearly but that he has no choice other than to remain here and work. He stated he believes his parents are visited by the moneylenders approximately every 2 months and that if they provide them with some money, they are left alone, but if they cannot provide money, they will send extra people to the house where his parents will be verbally abused and/or have their home vandalised.
[The applicant] claims that the moneylenders, led by a man named [Mr A] who is approximately 40 years old, have told his parents that if they see [the applicant] anywhere, they will kill him and then harm his family. He believes he will be killed because he cannot pay back both the capital and interest for the loan in full. When the Tribunal put to [the applicant] that the moneylenders would likely prioritise recovering their funds over harming [the applicant], he stated that he is concerned that on returning to Vietnam, he will not be able to find any good work that would allow him to repay the debts his family owes while also sustaining his own basic quality of life. Further to this, [the applicant] believes that the moneylenders wish for him to remain in Australia and to continue working here, because they know that while he works here, he is earning enough money to provide repayments for the debts. He believes they wish to pressure him and his family for him to work harder in Australia to provide more money more quickly.
[The applicant] also believes that his parents are under surveillance by the moneylenders and that they would not be allowed to leave Vietnam to join him here in Australia or to join his sister in [Country 1]. [The applicant] believes that if her were to return to Vietnam now, without the full amount his family owes, he would need to be able to tell the moneylenders his plan to repay them. He believes that without providing them an adequate plan, they will beat him or torture him, and that they would not allow him to live normally. He believes his life would be threatened if he fell behind in payments.
When questioned as to why [the applicant] believes this debt is his to settle, given his parents were the borrowers and not him, he told the Tribunal that he is the eldest son in the family, and so prior to leaving Vietnam, he gave the moneylenders a personal undertaking to discharge the debts. [The applicant] does not believe the authorities can or will protect him in Vietnam; he says his family has been to the police once, they did not help, and his parents were very lucky that the moneylenders did not realise they had been to see the police or else they would have been likely to make further threats or inflict harm on them.
The Tribunal explored with [the applicant] the possible illogicality of borrowing money to leave a country to earn money in that country to repay a debt, and so questioned him extensively to ensure that he did leave Vietnam of his own free will. [The applicant] was steadfast in his insistence that he and his parents absolutely chose this path, and that the money they added to the loan from the moneylenders to support his move to Australia was not the significant part of the money they borrowed to save their [product 1] trading business. [The applicant] implored the Tribunal to consider the impact of its decision on the long-term safety of himself and his family. He maintained that he cannot ever earn enough money in Vietnam to repay the amassed debts with interest that has accrued over many years, and he relies on his continued ability to live and work in Australia as the best chance of resolving that issue once and for all.
The Tribunal has carefully considered all of [the applicant’s] claims, and the Tribunal accepts that [the applicant’s] family owes money to a moneylender. The Tribunal also accepts that [the applicant] came to Australia with the intent of working to help his family repay the debts they owe to the moneylender. The Tribunal notes that [the applicant] could not corroborate the details of his family’s debtor or the quantum of the debt. However, the Tribunal accepts [the applicant’s] account that his family dealt with a man name [Mr A], who they believe works for a ‘godfather’ in Vietnam.
Well-founded fear of persecution
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
[The applicant] claims to fear returning to Vietnam because his family owes money to a black market moneylender, and he fears being unable to continue to assist his family to repay the debt if he returns to Vietnam. The Tribunal notes that [the applicant] does not make, nor has he ever made, any claims in respect of fear of persecution in his home country on the basis of his race, religion, nationality, political opinion, or membership of a particular social group.
DFAT’s latest country information report for Vietnam provides the following information regarding people who owe money to loan sharks:
[3.102] Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
[3.103] Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
[3.104] There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
[3.105] Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
[3.106] While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
The Tribunal notes that “DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.”
In [the applicant’s] case, on his own evidence the debt owed to the moneylenders is his parents’ debt and not his. While his evidence is that he gave an informal undertaking to [Mr A] prior to leaving Vietnam that he would repay the loan if his parents could not, this does not of itself amount to him actually assuming responsibility for the debt; the debtors are [the applicant’s] parents, not [the applicant]. On [the applicant’s] evidence, the loan sharks have been satisfied, for almost 10 years, with the sporadic payments his parents have made. They have not questioned the family’s decision to send his sister to [Country 1] nor enquired as to where funds were obtained for that venture.
However, the Tribunal does not accept that if [the applicant] returned to Vietnam, he would cease assisting his parents to make the regular payments to the loan shark as he has been doing dutifully for many years. The Tribunal discussed with [the applicant] the state-based protection measures that were available to him and his family should they wish to avail themselves of them. Although [the applicant] maintains his family have approached the police in the past with little success, they have in fact had the courage and wherewithal to engage the authorities and to take necessary steps to protect themselves from any anticipated aggression from the moneylender.
The Tribunal notes that DFAT assesses a moderate risk of violence exists for persons who owe money to moneylenders, and that relocation may not reduce the risk of violence in circumstances where a debt is owed to a loan shark who is a member of a large organised crime gang. [The applicant] was not prepared to elaborate on the source of the loan other than to express that he believes [Mr A] worked for a ‘godfather’.
The Tribunal also explored at length the country information available, and set out above, indicating that [the applicant] may possibly have been a victim of people trafficking. The evidence adduced by [the applicant] at the hearing makes this a highly plausible prospect; his family suffers a large business loss and needs money; they may have been prepared to sacrifice [the applicant] to migration for the purposes of work to repay the debts. However, [the applicant] flatly denied this each time it was put to him, no matter the approach taken by the Tribunal. Therefore, the Tribunal is satisfied that his parents’ debt to the moneylender includes funds voluntarily sought to give [the applicant] an opportunity to study and work abroad, albeit with the intent of repaying his family’s debts.
Ultimately, [the applicant’s] evidence is that his family has been prepared to take the necessary steps to involve the authorities where their safety at the hands of the moneylenders may have been compromised, and that they always make whatever repayment are possible on that debt, and that this has kept the moneylenders satisfied for almost 10 years. [The applicant’s] evidence is that he has never attained the steady full-time work he envisaged to help drive down the quantum of the loan quickly, and it appears on his evidence that the moneylenders are content to accept the repayments offered even if that results in no capital reduction.
[The applicant’s] evidence is that he is diligent and hard working. He has not attained any formal qualifications while living in Australia, but has a steady history working in certain necessary industries such as [specified industries], gaining skills that would be readily transferable should he return to Vietnam in the foreseeable future. Having considered DFAT’s assessment of the risks, and the capacity of the authorities to assist, the Tribunal is satisfied that the Vietnamese authorities can offer assistance to [the applicant] if it is needed, and so effective protection measures are available to him in Vietnam.
Therefore, the Tribunal finds [the applicant] would not face harm that amounts to persecution for the purposes of s 5J(1) of the Act. Considering [the applicant’s] claims individually and cumulatively, the Tribunal finds that there is not a real chance that he will suffer persecution now or in the reasonably foreseeable future if he returns to Vietnam.
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).
Complementary protection
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 has had regard to the exhaustive definition of ‘significant harm’ in s 36(2A), being that the non-citizen, [the applicant], will be: arbitrarily deprived of his life; subjected to the death penalty; subjected to torture; subjected to cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment. [The applicant] has claimed he believes he will be killed if he does not return to Vietnam with the money to pay off his parents’ debts.
[The applicant] has also told the Tribunal that if he returns to Vietnam, he must have an adequate plan organised to demonstrate he can repay the loan in order for the moneylenders to leave him alone and not to subject him to degrading treatment or punishment (such as, using his examples, throwing paint or other staining and rancid materials at his home).
However, [the applicant’s] own evidence is that his parents have consistently managed to make at least interest payments on the loan, that his sister has relocated to [Country 1] to try and provide financial support to repay the loan, and that despite not having attained any qualifications, [the applicant] himself is hard working and diligent and always does his best to earn money. Further, as set out above, [the applicant] is not himself the debtor; his parents owe the money to the moneylenders. [The applicant] could not provide a plausible explanation as to why the moneylenders would be prepared to make good on a threat to kill him if it meant they would not be able to recoup their loaned money.
[The applicant] has put forward no evidence to demonstrate that his parents have been subjected to any ill-treatment by the moneylenders in the 10 years since the loan was taken out. He has cited an example of a recent situation in his home village where a person who owed money to a moneylender fell so far behind in repayments that the moneylender used connections to constantly harass, threaten and intimidate the debtor, defacing his property and using whatever tactics were at their disposal to try and recoup their money. [The applicant] told the Tribunal that this man had ended up hanging himself in his home; in [the applicant’s] view, this death was caused by the moneylenders.
However, again, there is nothing in [the applicant’s] evidence to indicate that he or his family would find themselves in a similar situation. According to [the applicant], they continue to make loan payments whenever possible, and no threats are made against anyone’s life, including [the applicant’s]. As noted above, [the applicant’s] family has indicated its willingness to avail themselves of assistance from the local authorities when they have felt it necessary, and there is no suggestion that they would not take this path again in the future. [The applicant] has indicated that if he felt it were necessary, he would be willing to relocate within Vietnam, away from his parents and home village, in order to best protect himself from the moneylenders.
The country information available demonstrates both that effective protection measures are available from the Vietnamese authorities and that relocation within Vietnam may assist [the applicant] to maintain his personal safety while continuing to work to repay the debts owed. The prospect of a real risk of harm to [the applicant] will only arise in circumstances where he cannot continue to support his parents in making payments to the loan they have taken. On [the applicant’s] evidence presented at hearing, there is no reason for the Tribunal to assume he will not continue to do his utmost to earn a regular wage in Vietnam that will assist his family in repaying their loan to the moneylender. The necessary and foreseeable consequence of [the applicant] being removed from Australia to Vietnam is the potential loss of earnings, not a potential threat to his life or his dignity.
Having considered [the applicant’s] claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that [the applicant] will suffer significant harm.
Therefore, 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.
Mary Sheargold
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.
…

[2024] AATA 2383

26 April 2024

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Immigration

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