1801562 (Refugee) [2024] AATA 1272 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1801562
COUNTRY OF REFERENCE: Vietnam
MEMBER:Catherine Wall
DATE:20 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 February 2024 at 11:15am
CATCHWORDS REFUGEE – protection visa – Vietnam – economic hardship and inability to repay money borrowed from relatives – threats and fear of harm – distrust of authorities – new claim of borrowing from money lenders for business – assaults but no significant injuries – participation in environmental protest with no repercussions – employment history, large repayment, passage of time and no further contact with lenders – partner with visa application in progress and Australian-born child – generally consistent and credible evidence – country information – corruption falling but key concern – decision under review affirmed
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 Home Affairs on 19 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act)
The applicant is a [Age] year old citizen of Vietnam. He arrived in Australia [in] April 2017 and applied for the protection visa on 28 June 2017. The applicant stated in his visa application that he left Vietnam because he was unable to repay money he borrowed from relatives and he feared harm if he returns to Vietnam. He also claimed that he will face economic hardship in Vietnam.
The delegate refused to grant the visa on the basis that the applicant can access protection from the state and he could obtain employment upon return to enable him to support himself. The applicant applied for review of that decision on 22 January 2018.
The applicant attended a Tribunal hearing on 8 February 2024. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal was satisfied that he was able to communicate effectively in the hearing.
CLAIMS AND EVIDENCE
A summary of the applicant’s claims as detailed in his protection visa application are as follows:
I left Vietnam because of distrust of the judiciary and law enforcement, poor system of government and bureaucracy. Poverty…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1801562 (Refugee) [2024] AATA 1272
Case
[2024] AATA 1272
Decision Date
CaseChat Overview and Summary
The applicant, a national of Vietnam, sought review of a decision not to grant him a protection visa. The dispute centred on whether the applicant had a well-founded fear of persecution if returned to Vietnam, based on his claims of economic hardship, inability to repay debts to loan sharks, and fear of harm. The matter was before the Tribunal, with Member Catherine Wall presiding.
The core legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant possessed a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to him in Vietnam. The Tribunal also considered whether the applicant had established substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, there was a real risk of him suffering significant harm.
Member Wall found the applicant's evidence regarding his experiences with loan sharks to be generally consistent and credible, accepting that he had borrowed a substantial sum, been threatened, and attacked on several occasions. She also accepted that he had worked to repay the debt and had travelled to Australia out of despair and fear. However, the Tribunal gave significant weight to the fact that over ten years had passed since the loan was taken, the applicant had repaid more than double the amount borrowed, and the loan sharks had not contacted him or his family since his departure. Consequently, the Tribunal was not satisfied that the applicant still faced a real risk of persecution from the loan sharks, nor that he would suffer significant harm upon return to Vietnam, particularly given the passage of time and substantial repayments.
The Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that he did not satisfy the criteria under section 36(2) of the Migration Act 1958.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The applicant attended a Tribunal hearing on 8 February 2024. He was not represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal was satisfied that he was able to communicate effectively in the hearing.CLAIMS AND EVIDENCE A summary of the applicant’s claims as detailed in his protection visa application are as follows:I left Vietnam because of distrust of the judiciary and law enforcement, poor system of government and bureaucracy. Poverty and unemployment are still big due to the global economic impact. Due to such problems I have been living in harsh conditions so I had to borrow money from my relatives. I could not repay the debt and lived in mental distress and fear. Many people in Vietnam have problems like me and cannot repay and are hit, injured and killed. I chose Australia to live a better life.If I return to my country I will get caught by creditors and could be beaten, injured or killed as they will be searching for me.I have experienced harm in that country because I was verbally threatened and I lived in hardship because of the bad economy.I cannot seek help from the authorities as it is a matter of the poor economy and this is considered a personal problem.I did not try to relocate because the poor economic conditions are everywhere in the country.If I return I will live in harsh conditions and suffer discrimination for Taiwanese women. The applicant was invited to submit further information before the hearing but no further submissions were received.Evidence at the hearing The applicant’s evidence was that he was born in Hue City and has [siblings], one of whom is deceased. His father died when he was [age] years old and his mother is living. He has [sisters] who live in Melbourne and are Australian citizens, while the remainder of his family live in Vietnam. The applicant said that he left school when he was [age] years and a few years later decided to open a [business]. The business struggled so he borrowed 1.4 billion VND[1] from a loan shark at an interest rate of 12% per month. He said that he initially made interest only repayments of 170 million VND.[2] He claimed that a friend introduced him to the lenders but he never knew their identity because it is a black market. They would phone him each month to advise when they would visit the [business] to collect the money. He managed to make a few repayments but could not pay any more as his business was not going well.[1] Equivalent to approximately $88,000 AUD.[2] Equivalent to approximately $10,700 AUD The Tribunal heard that the lenders went to his house and took all the valuable assets in the house. He was living with his parents so they became aware of the debt when this happened. His parents gave him a few hundred million VND to help with the debt but they couldn’t afford any more. He said that the lenders told him to sell the house so he could repay them but he told them that this was not possible as his parents owned the house. He told them that he would get a job and repay them over time. He closed the [business] and secured a job at a [Workplace] managing the [facilities] which were used for [a Job task]. He kept paying the lenders each month and they were happy with that.
Decision
Reasons for decision
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.Catherine WallMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
The current Department of Foreign Affairs and Trade (DFAT) report is the Country Information Report Vietnam dated 11 January 2022.CONSIDERATION Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[4]Identity[4] (1999) 197 CLR 510. The applicant’s nationality is not an issue. He travelled to Australia on a valid Vietnamese passport and has consistently stated in documentation that he is a national of Vietnam. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Vietnam and I have assessed his claims against Vietnam as his receiving country.Does the applicant meet the refugee criteria?Threat from loan shark I found the applicant’s evidence about his experiences in Vietnam to be generally consistent and credible. I consider the amount of the loan to be unusually high, particularly considering that he was a young man starting a business for the first time. Nevertheless I am willing to accept this given that I am satisfied that his account of the loan and subsequent activities is otherwise plausible. I also find that the incorrect information in the visa application results from the applicant’s friend completing the form for him and his inability to verify the information because of his limited English. I give these inconsistencies no weight. I accept that the applicant borrowed money from a loan shark and was unable to repay the debt. I accept that the loan sharks threatened him and attacked him on several occasions. I accept that the applicant obtained work at a [Workplace] and took a second job as [an Occupation] in order to attempt to repay the debt but his income was insufficient to make the repayments required. I accept that he travelled to Australia because he despaired that he could ever repay the loan and he was living in fear of the repercussions. I give significant weight to the applicant’s evidence that he recently made a large repayment to the loan shark because he does not want to face threats if he is required to return to Vietnam. I also give weight to his evidence that he believes he has repaid ‘enough’ of the debt, having borrowed 1.4 billion VND and repaid 3-4 billion VND. I have considered his claim that he could still face problems from the loan sharks if he returns to Vietnam because of the compounding interest. I am not satisfied, however, that this is the case. It is over 10 years since he borrowed the money, he has repaid more than double the amount he borrowed, the loan sharks have not contacted him while he has been in Australia and they have not contacted his family since he left the country.