1802253 (Refugee)

1802253 (Refugee) [2022] AATA 4561 (1 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Duc-Dung TRAN (MARN: 0319577)
CASE NUMBER:  1802253
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul Noonan
DATE:1 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 1 December 2022 at 4:27pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from gangsters because of business loans – some assets repossessed, threats and pressure to become involved in drug production and trafficking – mother’s ongoing investments, payment terms with creditors and change of relationship with main creditor – no harm to mother or brother – delay in applying for protection – applied after further student visa refused, tribunal review and application for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 10 January 2018 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 27 July 2017. The delegate refused to grant the visa on the basis that the applicant did not fear persecution for a refugee ground and could obtain protection should he require it for the purposes of assessing complementary protection. The delegate was satisfied that the applicant’s country of nationality is Vietnam, and the Tribunal is also satisfied, on the basis of the biodata with respect to his passport, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claim with respect to Vietnam as the country of reference for the purposes of this appeal.
The applicant appeared before the Tribunal on 26 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence by conference telephone from his father [Mr A] and his mother [Ms B] who were both located in Vietnam during the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Procedural history
The applicant was first granted a student visa on 16 September 2008 and he entered Australia [in] September 2008. He departed Australia for Vietnam [in] September 2010 and arrived back in Australia [in] November 2010. He again departed Australia [in] January 2011 and arrived back in Australia [in] March 2011. He then pursued further student visas and was eventually refused a final student visa on 7 June 2017 in a separately constituted Tribunal review. He then sought and was declined Ministerial intervention and subsequently applied for protection on 27 July 2017.
The applicant was not interviewed by the delegate. For the purposes of his application to the Tribunal, the applicant provided a copy of the delegate’s decision.
CONSIDERATION OF Claims and evidence
The applicant made the following pertinent disclosures with respect to his background and profile in his written claim for protection. He was born on [Date] in [Location], Hai Phong, Vietnam. He speaks, reads and writes Vietnamese and English.
The applicant’s claims for protection
In his written claims for protection, the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Vietnam:
·His family have been harassed and oppressed by gangsters since [Year 1] due to a land dispute over the local authority’s compulsory procurement of their land for a development. The family also ran a farming business and invested extensively in [investment]. Since [Year 2] the [investment] business made losses due to a downturn in the [investment] market. This led to them incurring big debts to gangsters. In particular a creditor [Ms C] has forced his mother to ask him to get involved in drug trafficking in Australia to pay beck the debt. As such he fears returning to Vietnam.
The applicant provided written submissions from himself and his parents in 2017 and again in 2022. He also submitted written records purporting to be evidence of debts held by his mother. He also submitted an untranslated video recording of what he stated were discussions between male gangsters and his father about debt repayments.
At the hearing, the applicant’s mother gave evidence that she had saved and borrowed money for [investment] purposes. She used her profits to send the applicant to study overseas. She agreed that some of these assets have been repossessed by creditors. However, she also gave evidence that she has come to repayment terms with her creditors based on income generated from [investment] assets. Under questioning she gave evidence that she actually retains several [investments], and her creditors are satisfied with repayment terms that are financed from these assets. The Tribunal questioned why she had not made available official records of her borrowings and assets. She proceeded to give a somewhat confused statement that she had run an investment scheme for colleagues at work which had run at a loss and now she owes them money. When pressed on the question of documentation she stated that she has some loan documentation which she will submit. The representative submitted that they will collate and submit further receipts and paperwork evidence of loans and agreements.
The applicant’s mother then stated that her creditors have let her know that they are interested in getting her son to grow drugs in Australia. They have asked her to move to Australia with the applicant in order to earn money quicker but she did not agree with this request. She had thought of suicide but did not and she told her son to stay and live in Australia and pray for his family in Vietnam.
When asked about her other son, who resides in Vietnam, the applicant’s mother stated that she lives with his wife and children at his house and has done so for the past year. Her other son has worked as [an Occupation] for the past few years and returns home each month. He sometimes helps her out financially. The Tribunal noted that this son appears unharmed and this may lead it to conclude that the applicant could return and live safely in Vietnam just as this son has now done for many years. She responded that he has married and lives a quiet life. However she then submitted that her creditors attacked him once and beat up her grandchildren. She told her creditors to leave her son alone as he had nothing to do with the debt. She did not report this incident to the authorities for fear of retaliation. The applicant’s representative stated that this son has been married for over 20 years and lives a very separate life to the applicant’s mother.
When asked if there has been any fear perpetrated against herself or any member of her family since she came to terms with her creditors, she gave a somewhat vague answer that she simply avoids her creditors but then stated that she continues to borrow money. The Tribunal noted that she did not mention this recent borrowing in her statement to the Tribunal. She responded that she did not because she has no evidence. The Tribunal also noted that she had stated in her written 2022 statement to the Tribunal that she had come to terms with her main creditor [Ms C] and that this creditor was now protective of her due to a change in philosophy as she has become a Buddhist. The Tribunal asked the applicant’s mother about this statement several times however she did not provide further details and appeared somewhat evasive in doing so.
The applicant’s father stated that he lives separate to the applicant’s mother in the family shrine. He stated the loan shark has come to him many times and threatened him but not beaten him. They have beaten up his wife and he lives in fear of his wife’s creditors.
The Tribunal put to the applicant that his mother has given evidence that she has come to an arrangement with her creditors for payment using retained assets which they are satisfied with and, further, that she has an arrangement with her main creditor who now protects her. She has also stated that his brother returns home regularly and that she lives with his wife and has done so for over a year and does not move around much. The applicant stated that his brother had already lost his business and suffered harm from his creditors. The Tribunal noted that his mother stated that he ran this business over 10 years ago and has been working as [an Occupation] for the past few years. The applicant then stated the creditors are interested in him because he lives in Australia and if something happened to his mother it would be up to him to repay the debt. The Tribunal noted that she retains assets. The applicant submitted that the value of these assets is uncertain and they fluctuate in value.
The Tribunal asked the applicant why he should be considered under the refugee criteria for reason of his mother owing money to creditors due to her ongoing commercial dealings. The applicant stated that he fears harm if he could not repay the money in the future if his mother passed away. The Tribunal put to the applicant that his fear of harm may appear speculative given his evidence that his mother has acceptable arrangements in place with her creditors and his brother lives and works unharmed in close association with her and that any harm he suffered appears to have been as a result of his own business dealings many years ago and not his mother’s affairs. The applicant responded that his mother has cancer (which his mother did not mention), and he does not know what will happen in the future.
The Tribunal discussed the videos submitted. The applicant submitted that these show discussions between his father and the gangsters. When asked when these were recorded the applicant stated during 2020 however the Tribunal noted that they were dated 2017. The Tribunal also noted that they were untranslated. The applicant stated that he did not really know much about them and agreed the audio quality was poor. The applicant’s representative later submitted a transcript of the videos. The Tribunal has reviewed these transcripts. They are of poor quality, probably due to the very poor audio quality as noted by the translator. The transcripts do not reflect any specific threats of harm being made and the identity of the participants in the videos and the subject of their conversations in the videos are not clearly discernible from the transcripts, and the transcripts in large part simply do not make sense as the conversations are severely disjointed and nonsensical in parts. Given the stated very poor quality of the transcripts, as noted by the translator due to the indistinct nature of the audio quality, the Tribunal places little weight on these videos but does accept that the applicant’s father, as claimed, was discussing money or debts of some sort with the men in the video in 2017, but it is unclear as to the nature of the debt.
The Tribunal noted that the applicant’s father and mother have been involved in [investment] dealings for many years. The Tribunal noted a land dispute in 2005 in which the family [farm] was compulsorily acquired by the authorities for a [development]. The applicant stated that after this, the family diversified its assets by buying [investments]. The applicant agreed that he returned to Vietnam in 2010 and he had no fear of harm for reason of this old land dispute. He mainly highlighted this old dispute to demonstrate that his family has had past conflict with the authorities and as such he may not be able to obtain protection from them should he require it.
The Tribunal also noted that the applicant had lodged his claim for protection in 2017 but he had spent many years prior to that pursuing student visa options. The Tribunal put to the applicant that this may reflect that he is pursuing a migration outcome rather than actually genuinely fearing harm in Vietnam. The applicant then implausibly submitted that he had not done so as they had come to an agreement with his mother’s creditors as he had promised to “grow grass” for them and also get a good job in Australia and pay them back. He also submitted he had not known about the protection visa option. He stated that he had not made any enquiries until he had no other visa option and he found the protection visa option and used it as a way to try and stay in Australia. When asked, he confirmed that he had had no contact from creditors in Vietnam since 2013 but stated they put pressure on his mother to tell him what they want.
The Tribunal discussed the applicant’s stated work history and noted he disclosed he has not worked for two years. The Tribunal put to the applicant that this may reflect he receives financial assistance from his family in Vietnam. The applicant denied this and said he lives frugally and sublets his house to others and does odd jobs such as cleaning and gardening.
Analysis of claims
After the hearing, the Tribunal wrote to the applicant under s 424A with respect to the evidence given by his mother at the hearing as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information. The particulars of the information are:
At hearing your mother gave the following evidence:
1. That she had borrowed money for [investment] purposes. That she has come to repayment terms with her creditors based on income generated from [investment] assets. That she retains several [investments], and her creditors are satisfied with repayment terms that are financed from these assets.
2. That she had come to terms with her main creditor [Ms C] and that this creditor was now protective of her due to a change in philosophy.
3. That she resides on a permanent basis with her daughter-in-law and that her son has worked in [Work sector] for several years and returns home monthly.
This information is relevant because it may cause the Tribunal to conclude that your families claimed creditors are satisfied with repayment terms and the state of the claimed debts owed by your mother and as such there is no real chance of serious harm or real risk of significant harm to you as they would not be adversely interested in you.
If we rely on this information in making our decision, we may not accept that you have a well‑founded fear of persecution if you return to Vietnam or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Vietnam. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
In response to the Tribunal’s invitation to comment, the applicant and his representative responded as follows (unedited):
Dear Member,
RE: INVITATION TO COMMENT ON OR RESPOND TO INFORMATION - [THE APPLICANT].
Thanks for a fair and decent hearing on 28 August 2022 and the opportunity to comment and respond to information.
We are providing the following documents in support of this Submission:
1. Mother’s Statement 2022 - Further Information after Hearing: The mother of the review applicant has made further statement in response to the Tribunal’s invitation to comment.
2. Mother’s Statement 2018 on Brother [Mr D]: The mother has also provided back in 2018 information about his brother [Mr D]. This document is provided again in support of the claim that [Mr D], together with his parents, have been targeted by the creditors.
3. Creditors [E] - Loan Documents and Notes; and Creditors [Ms C] - Loan Documents and Notes. These documents were previously submitted and are provided again to address the concern of the Tribunal at the hearing on the evidence of the loans.
4. Transcripts/Conversations of 3 of 7 videos on visits and threats of creditors. These documents are provided in support of already submitted documents [Parents - SUBMISSION 1 (Details on Video Clips)].
We, translators, would like to confirm truthfulness of their claim in the selected transcripts on the conversations of the creditors/loan sharks and the applicant’s father during their visit to collect debts in his family’s temple in Hai Phong.
This submission is to read in conjunction with the supporting document 1. Mother’s Statement 2022 - Further Information after Hearing.
Also supported by further documents provided with this submission, we would like to address the following concerns raised at the hearing:
1. That the mother of the applicant had borrowed money for [investment] purposes. That she has come to repayment terms with her creditors based on income generated from [investment] assets. That she retains several [investments], and her creditors are satisfied with repayment terms that are financed from these assets.
As clarified in the Supporting Statement (after hearing) of [Ms B], the mother of the applicant:
• She had borrowed money for [investment] purposes.
• She has come to some loose repayment terms with her creditors based on income generated from [investment] assets. However, this income was very limited and currently has ended.
• She did retain several [investments], and her creditors have been temporarily satisfied with repayment terms that were financed from these assets.
However she has sold them all by way of deducting debts.
Point 1 of her Statement:
....The reason why I could repay that amount was that a number of properties were still under our joint names and not transferred to the creditors yet, and now that the properties value has risen, we agreed with each other to sign contracts of sale based on the current market, and the debts were deducted according to the selling price of these properties. Currently, I have no such properties left for debt deduction. We have no hope to be able to do anything to repay our remaining debts of more than 30 Billion VND.
2. That she had come to terms with her main creditor [Ms C] and that this creditor was now protective of her due to a change in philosophy.
As clarified in her Supporting Statement:
• [Ms C] has now changed in philosophy and treats her much better but still controls her for the repayment of the debts as much as possible.
• She may be considered as a slave working for [Ms C], looking after her master’s household and business.
Point 2 of her Statement:
.... She has changed to a person who has stopped beating us up, cursing and abusing us. However, I still have to live at her home and do what she tells me. I have to do her household and company works in Bac Giang Province as well. [Ms C] only pays me a monthly sum of 4 Million VND to assist with my living. When I earn some money, 5 or 10 Million VND, from my brokerage work, [Ms C] will take them all for herself. [Ms C] is only one of my many creditors who often ask me to repay them money and threaten to beat me up if I cannot repay the debts. ...
3. That she resides on a permanent basis with her daughter-in-law and that her son has worked in [Work sector] for several years and returns home monthly.
As clarified in her Supporting Statement:
• She would like to reside on a permanent basis with her daughter-in-law but currently is forced to lived in the household of [Ms C] and serving her as a slave. She only stays with her daughter-in-law temporarily.
• She talked to the Tribunal at the hearing in August this year when she was being back there to look after her daughter who was sick.
Point 3 of her Statement:
In March 2022, my daughter-in-law had COVID. Then in August 2022, she was very sick and bedridden post COVID. As her husband was absent, I had to come to live with and look after her. After she got better and was able to look after herself, I had to be back to live in the house of [Ms C] and do what she tells me to do as I am not allowed to live where I wish.
• Her son has worked in [Work sector] for several years to get away from the creditors and returns home a few times a years when he has leaves from work. He must be very discreet not to let the creditors know about his whereabouts.
My child [Mr D] has been married and separated from our household from 1998. He has his own home and is living with his four children. When the family business collapsed, his [factory] business was badly affected too. His parents’ creditors and his own creditors kept on asking him for debts repayment and breaking things in his factory on a regular basis.
My son [Mr D] has now lost all his factory and business. He had to rent a shop to open an eating house business. The creditors and their disciples constantly visited him to collect debts and destroy things around.
....
We did report the incidents to the Police and pay them some protection money but we still cannot do our own business as [Mr D] had to move to Quang Ninh Province to work in a [Workplace] to earn a living and get away from the creditors. Currently, [Mr D] is unable to repay his debts and has lots of sicknesses. He earns just enough money to pay for his medication and living expenses for himself. A few times a year when he has leave, he tries to go home to visit his wife and children without daring letting anybody know. He always has to avoid meeting his creditors. [Mr D] is currently just a tool for the creditors to use to put pressures on me for debt collection when they need.
The mother of the applicant has further explained as a conclusion in her statement as follows:
Indeed, the creditors were not leaving me alone. Most of them are letting me doing what I am doing now just because they want to get back some money from me. If they kill the whole family, they will lose everything and cannot get a cent back, besides they have to pay for hiring other people to deal with us and may well create more trouble for themselves later on. However, we do not know for sure which ones of my many creditors have used the method of creating accidents to and thus putting pressures on my family members and loved ones.....
All members of our family are in constant danger and we can loose our lives at anytime: We have to get out of the house to try to earn a living and nobody can protect us if they continue to arrange to cause car accidents to us as previously explained.
In all agreements to repay money to my creditors, I always promise that if we parents cannot repay them then my children will. If my children cannot pay then my grandchildren will. I have never dared saying otherwise just because I want to live.
.....
The creditors still rely on my son [the applicant] to be able to repay my debts as he is still the only person who is now living abroad and most able to repay my debts in case we cannot continue to repay the money to them. There are very real dangers to him if he goes back to Vietnam now. They can kidnap him, beat him up to threaten and intimidate us so that we are pressured to repay them money sooner as they have done so to my other son [Mr D] and his children. For worse, if they realize that we have no more ability to repay the debts and my son [the applicant] is no longer living abroad, they will put more pressure on us so that we have no ways of continue to live.
Conclusion:
The applicant needs special protection as he fears serious harm because of his relationship to his family that is a particular social group in this case or “membership of a particular social group”.
There is well-founded fear of persecution as creditors are only temporarily satisfied with repayment terms and the state of the claimed debts owed by the mother of the applicant as long as they are still alive and can still make some money, especially the young and able review applicant now in Australia.
As such there is still real chance of serious harm or real risk of significant harm to the applicant as they would be adversely interested in the applicant who now lives overseas and can be their hope and is to be ransomed. As promised by his mother to the creditors, they should let her and her members of family especially her son, the applicant, live as he and his offsprings will be able to earn money to pay their debts.
We would be grateful if the Tribunal would accept that the applicant does have a well‑founded fear of persecution if he now returns to Vietnam or that there is a real risk that he becomes useless in the eyes of the creditors and is to be disposed of in current circumstances.
He will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Vietnam.

The Tribunal has also considered the evidence of debts submitted. The Tribunal accepts that these documents reflect borrowings by the applicant’s mother with respect to [investment] dealings in the period 2009 to 2011.
The Tribunal is concerned by the material contradictions in the evidence pertaining to this matter. In particular, the applicant’s mother gave clear evidence that she had come to satisfactory terms with her outstanding creditors and that she retained significant assets that generate income sufficient to repay her debts. In her subsequent written response, she then directly contradicted her prior evidence and claimed that she had been forced to liquidate her assets and was left with significant residual debt. She then claimed that she was reliant upon the applicant to send money to repay the debt. However, the applicant himself has not worked for the past two years and did not appear to be acting with any urgency in rectifying this situation, which significantly undermines his mother’s subsequent claim in the s 424A response of financial dependency upon the applicant. The Tribunal does not accept these subsequent claims by the applicant’s mother as credible.
The Tribunal accepts that the applicant’s brother and family may have suffered harm from creditors in the past due to his brother’s business dealings, as also reiterated in statements from the applicant’s parents received post hearing, but this appears to have been over 20 years ago. Since then the applicant’s brother has been employed in [Work sector] and the applicant’s mother resides with her daughter-in-law. The Tribunal rejects the more recent submission in the s 424A response that the applicant’s mother is forced to live as a virtual slave with her main creditor. If this was the case, the Tribunal would expect that this would have been made very clear in the prehearing submissions and evidence given at hearing. This was not the case. Rather, in her evidence to the Tribunal, the applicant’s mother was very clear that her main creditor was now a friend and protector. The Tribunal also rejects the newly introduced claim in the s 424A response that the applicant’s brother is still sought by creditors and must be careful when he returns home. At hearing, there was no mention that he was in peril from creditors and it was asserted that he returned home monthly and that his family, including the applicant’s mother, lived in the local area without taking any particular precautions to avoid harm from creditors. If the applicant’s brother still feared harm from his creditors, the Tribunal would expect this would have been made very clear at hearing.
Further, as discussed at hearing, the applicant has delayed applying for protection for many years and has been pursuing other visa options. The Tribunal does not accept that he was unaware of the protection visa option and indeed he gave evidence that he only decided to apply for protection when his visa options had run out and as a means to prolong his stay in Australia. The Tribunal considers that the applicant’s visa application history reflects that he has not been threatened in any way by his mother’s creditors.
The Tribunal accepts that the applicant’s mother owes money to her creditors but does not accept that those creditors are adversely interested in either her, the applicant’s father, the applicant’s brother or the applicant. Should the applicant’s mother pass away as he claimed was a risk, the Tribunal gives great weight to the applicant mother’s original evidence given on affirmation at hearing that she has sufficient assets to service her outstanding debts, and as such the Tribunal is satisfied that her creditors will continue to not be adversely interested in her surviving family.
As such, given the above considerations, the Tribunal is satisfied that there is not a real chance of serious harm to the applicant from his mother’s creditors or anyone else should he be required to return to Vietnam either now or in the reasonably foreseeable future.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Vietnam. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm for reason of his mother owing money to gangsters or loan sharks.
Overall conclusions
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4561

1 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction