1732948 (Refugee)

[2022] AATA 3615

1732948 (Refugee) [2022] AATA 3615 (2 August 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Dr Tung Bao Ngo (MARN: 0006620)

CASE NUMBER:  1732948

COUNTRY OF REFERENCE:             Vietnam

MEMBER:Dr Jason Harkess

DATE:2 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Permanent Protection (Class XA) (Subclass 866) visa for reconsideration with a direction that the Applicant meets the criteria contained in section 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 02 August 2022 at 3:16pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – victims of loans sharks – complementary protection – economic conditions – business debts – physical assault – threats of dismemberment – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2 cl 866.611

CASES

Abebe v The Commonwealth (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

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

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicant is a citizen of Vietnam. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant him a protection visa. The Applicant is [age] years of age and is presently residing in Victoria, Australia.

2. The Applicant originally applied for the protection visa on 24 November 2016. The visa was refused on 20 December 2017. The Applicant lodged his review application with the Tribunal on 27 December 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant his visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicant is a citizen of Vietnam, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In his original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 27 June 2022. The Applicant participated at the hearing before the Tribunal by video (MS Teams) to give evidence and present arguments in support of his case.

2. The Applicant was assisted by his representative, Dr Tung Bao Ngo, who also participated at the hearing by video.

3. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, who also participated at the hearing by video.

Tribunal’s Determination

1. The Tribunal has concluded that the decisions to refuse the Applicants a protection visas ought to be remitted for reconsideration in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicant’s original written visa application;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicant in relation to his case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to Vietnam that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

consideration oF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa.

Applicant’s Background

1. In his application form, the Applicant stated that he comes from [a named town in] Vietnam. He stated that he is a citizen of Vietnam by birth. A copy of his passport, which he provided to the Department, corroborated this claim. He further said that he does not hold citizenship of any other country.

2. The Applicant further stated that he had never been married and did not have any children. The Applicant stated that he belongs to the Vietnamese ethnic group, is Buddhist in terms of faith, is able to speak, read and write Vietnamese, and can read and write English.

3. The Applicant arrived in Australia [in] February 2014, having been granted a [Student] visa which was cancelled on 30 July 2015. He applied for a protection visa on 24 November 2016, which was well after the cancellation of his [Student] visa. He has not departed Australia since the protection visa application was made.

Protection Claims

1. The Applicant’s original claims for protection are to be found in answers to questions in his protection visa application form. The relevant questions posed in the form, and the Applicant’s answers given, are reproduced verbatim (spelling, grammatical and expressional errors included):

   88    I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)..

   VIETNAM

   89    Why did you leave that country(s)? Provide specific details

   FIRST TIME I CAME HERE , l TAKE THE STUDY AT AUSTRALIA UNDER STUDENT VISA . AFTER TWO YEARS MY STUDY WILL BE COMPLETED. THEN THE CURRENT ISSUE AT VIETNAM TO MAKE IT DECISION TO LEA VE VIETNAM FOR FOREVER .

   l 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 lMPACT ON THE NATIONS ECONOMY. POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, l HAS BEEN LIVING IN HARSH CONDITION SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I LIVE IN MENTAL DISTRESS AND FEAR. MANY PEOPLE IN VlETNAM HAVE PROBLEM LIKE ME, WHO BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED.

   l HOPE THE GOVERNMENT OF AUSTRALJA CAN CONSIDER MY APPLICATION . THANK YOU .

   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 CREDlTOR AND COULD BE BEATEN, INJURED OR KILLED. THEY WILL SEARCHING ME.

   91    Did you experience harm in that country(s)?

   No¨►   Go to Question 93

   Yesþ►   Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)

   YES l 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)

   92    Did you seek help within the country(s) after the harm?

   No¨►   Give reasons for why you did not try to seek help

   Not answered.

   Yesþ►   Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)

   YES BUT NOTHING HAPPEN BECAUSE THIS IS A MATTER OF ECONOMY OF THE COUNTRY (THEY CONSIDER AS A PERSONAL PROBLEM)

   93    Did you move, or try to move, to another part of the country(s)to seek safety?

   Noþ►   Give reasons for 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 SOClO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM EVEN MOVE TO ANOTHER PLACES (INSIDE THAT COUNTRY)

   Yes¨►   Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)

   Not answered.

   94    Do you think you will be harmed or mistreated if you returrn to that country(s)?

   No¨

   Yesþ►   Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

   YEST WILL LIVE IN HARSH CONDITONS, SUFFERED DISCRIMINATION FOR TAWAINESE WOMEN

   95    Do you think the authorities of that country(s) can and will protect you if you go back?

   Noþ►   Give details about why you think the authorities could not, or would not, protect you

   NO BECAUSE THE AUTHORITIES COULD NOT PROTECT ME BECAUSE THlS IS A MATTER OF SOCIOECONOMIC.

   I WILL EXPERIENCE THE SAME PROBLEM.

   Yes¨►   Give details as to which authorities you think would protect you

   Not answered.

   96    Do you think you will be able to relocate within that country(s)?

   Noþ►   Give details about why you are unable to relocate

   NO, UNABLE TO RELOCATE BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM.

   Yes¨►   Give details as to where you could relocate

   Not answered.

Claims before Tribunal

1. At the hearing before the Tribunal, the Applicant gave evidence concerning his claims for protection that was, to some extent, consistent with his original claims as contained in his protection visa application form. The most significant aspects of this evidence are summarised as follows:

   (a)The Applicant confirmed that he is from Vietnam and that he came to Australia originally in 2013 as a student. The Applicant said that he is presently single. His mother passed away two years ago. His father, who remains in Vietnam, is [range] years of age.

   (b)The Applicant has one [brother] who is [age] years of age. He said that he does not know where his brother lives as he ‘had to go into hiding’ as a result of loan sharks pursuing the family. However, he said that he maintains contact with his brother by communicating once or twice a year using social media applications. The Applicant’s brother is aware that the Applicant is living in Australia. The Applicant said that he told his brother that he was living in Australia because the Applicant does not fear living here.

   (c)After the Applicant first arrived in Australia in 2013, he returned to Vietnam once in 2014 for the purposes of the new year holiday. He stayed in Vietnam then for three weeks before returning to Australia when his student visa was still valid. The Applicant was unable to finish his studies because his family was unable to financially support him.

   (d)The Applicant explained that his father’s business in Vietnam suffered financially. The Applicant’s father had to borrow money off loan sharks in Vietnam. He was unable to repay the money. The Applicant remained in Australia because threats had been made by the loan sharks against the Applicant’s family. He said that the loan sharks attended his family’s home in Vietnam and smashed things. They also hit the Applicant’s parents and his [brother]. The Applicant’s family warned him to remain in Australia and that, if he returned home to Vietnam, his life would be in danger. The loan sharks had specifically threatened the Applicant’s father that, if the loan was not repaid with interest, they would cut of the ear or leg of his children (namely, the Applicant and the Applicant’s brother).

   (e)The Applicant stated that his father owes the loan sharks VND 5 billion. While the Applicant’s father has attempted to pay off the loan, he has not been able to do so because of the high interest rate. The Applicant continues to help his father service the debt by sending AUD 200-300 home every month.

   (f)The Applicant said that the loan sharks are aware that he is overseas and sending money home to his father to help service the debt. The Applicant said that the loan sharks would return to the home and assault his parents whenever he was unable to send money home in time. The last occasion this happened, according to the Applicant, was just before his mother passed away. The Applicant said that they have returned to his parents’ home 3 to 4 times to assault them since the first occasion.

   (g)When the Tribunal suggested to the Applicant that the police would be able to deal with the loan sharks, the Applicant accepted that the conduct of the loan sharks was illegal. He also said that his parents complained to police. However, police only opened a file for the matter and took no further action.

   (h)The Applicant fears returning to Vietnam because he does not know what would happen to him. When the Tribunal suggested that the loan sharks are unlikely to hurt him because he does not owe them any money (rather, it is his father who owes the money), the Applicant said that presently he is sending them money every month while he is in Australia. He said they would come to his parents’ house if he does not provide the money. The Applicant is of the belief that the the loan sharks will continue to use the lives of himself and his [brother] to threaten his father. He believes the loan sharks have an extensive network in Vietnam and would not be safe wherever he lived.

   (i)The Applicant said that, apart from the problem with the loan sharks, he fears returning to Vietnam because he does not know what he would be able to do. He said he is currently working as [an occupation 1] in Melbourne. He said that his life is stable in Australia and that would effectively disappear if he were to return to Vietnam.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about Vietnam on 11 January 2022 (‘the DFAT report’).[11] It includes the following information:

   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.

   3.107     DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: Vietnam (11 January 2022).

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18]

Credibility of Applicant’s Claims in this Case

[17] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[18] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal has assessed the Applicant as most likely being a witness of truth. The Applicant was generally very responsive and candid in his answers to questions put to him at the Tribunal hearing. While the Tribunal notes the absence of any corroborative written material that might support his claims, that is not so unusual in cases based on threats made by loan sharks who are likely to avoid documenting their illegal transactions. The Applicant presented as someone who was genuinely fearful of threats that had been made against his family and that he genuinely fears returning to Vietnam as his physical safety may be at risk. He appeared genuinely fearful that the police in Vietnam could do little to protect him.

2. Accordingly, the Tribunal is prepared to make the following findings that are critical to the First Applicant’s claims:

   (a)The Applicant’s parents owe a significant debt to loan sharks in Vietnam.

   (b)The Applicant has, for several years, assisted his father in servicing the debt by sending money home to Vietnam.

   (c)The loan sharks have physically intimidated and assault the Applicant’s parents while he has been in Australia.

   (d)The same loan sharks have threatened the Applicant’s family members that, if loan repayments are not made, the Applicant will suffer significant physical harm.

   (e)There is a real risk that the Applicant will suffer harm from the loan sharks if he were to return to Vietnam.

   (f)Police in Vietnam will not offer adequate protection for the Applicant.

   (g)The Applicant will face the risk of harm wherever he may choose to live.

Do the Applicants Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[19]

   [19] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[20] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[21]

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: 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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[22] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[23] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[24]

Does the First Applicant Have a Well-Founded Fear of Persecution?

[22] MIEA v Guo (1997) 191 CLR 559, 574.

[23] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[24] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. In this case, although the Tribunal is satisfied that the Applicant is at risk of serious harm if he were to return to Vietnam, it is not satisfied that this would be for reasons of persecution. Rather, the risk of harm arises out of a private debt being pursued by unlawful means. Accordingly, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution if he were to return to his home country. He does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[25]

   [25] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[26] or

   (b)the death penalty will be carried out on them;[27] or

   (c)they will be subjected to torture;[28] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[29] or

   (e)they will be subjected to degrading treatment or punishment.[30]

   [26] Migration Act 1958 (Cth), s 36(2A)(a).

   [27] Migration Act 1958 (Cth), s 36(2A)(b).

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [30] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[31]

Is there a Real Risk of Significant Harm?

[31] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. The Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Vietnam, there is a real risk that the Applicant will suffer significant harm, for the reasons that have been expressed in paragraph 27 above.

2. The Tribunal finds that the Applicant meets the complementary protection criterion.

Summary

1. Although the Tribunal is not satisfied that the Applicant meets the refugee criterion, it is satisfied he meets the complementary protection criterion.

DECISION

1. The Tribunal remits the application for a Permanent Protection (Class XA) (Subclass 866) visa for reconsideration with a direction that the Applicant meets the criteria contained in section 36(2)(aa) of the Migration Act 1958 (Cth).

Dr Jason Harkess

Member