1811451 (Refugee)

[2024] AATA 3031

1811451 (Refugee) [2024] AATA 3031 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811451

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Samira Kamandi

DATE:29 April 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 April 2024 at 9:38am

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – financial hardship – has faced extreme intimidation and violence from criminal lenders – loan sharks – lack of repayment – insufficient information available to support his claims – not satisfied the applicant has a well-founded fear of serious harm –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants consist of a wife (the applicant) her husband and two sons. They claim to be citizens of Vietnam. The applicants were granted Temporary Work (Skilled – Subclass 457) visas and arrived in Australia on [date] March 2013. Their visas ceased on 6 March 2017 and they lodged a combined protection visa application on 10 April 2017.

2. The applicants’ protection visa application was refused by a delegate of the Minister for Home Affairs on 6 April 2018 under s 65 of the Migration Act 1958 (the Act). This is an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. The applicants’ protection visa application indicates that they left Vietnam for the safety of their family and have been in Australia for a long time. There is a group of people who are chasing after the family. The group of people got into their house in Vietnam and threatened the applicants. If returned, they will be killed. They will not be able to obtain help and ‘people’ will go after the family wherever they go.

4. On 25 July 2017, the applicant emailed the Department claiming that her family is seeking protection due to financial hardship and ‘life threatening’ situation in Vietnam. She states that her family borrowed money from ‘an underworld’ in Vietnam with high interest. They were unable to repay the money and are being chased by a gang. Her family must live in different parts of the country and is suffering from being separated. If returned, they will be killed and she is not able to help her family to pay off the debt. In addition, the applicant claims that her children have been living in Australia for a long time, Australia is their home, and that it would be difficult for them to go back.

   Delegate’s decision

5. The applicants were not interviewed by the Department. The delegate found that while the applicants wished to remain in Australia, they did not face persecution or discrimination and have not claimed to fear harm in Vietnam for reasons mentioned in s 5J (1) of the Act. In citing country information, the delegate also found that the applicants could access state protection. The delegate was not satisfied that the applicants faced a real chance of serious harm or were at a real risk of significant harm if returned to Vietnam.

   Review application

6. On 23 April 2018, the applicants lodged a review application with the Tribunal. The applicants did not provide any additional information or submissions in support of their review application with the Tribunal.

7. On 27 February 2024, the applicants were invited to attend a hearing on 3 April 2024. On 28 February 2024, the applicant responded and emailed the Tribunal with a completed ‘response to hearing invitation’ form indicating that the applicants will be attending the hearing and will be providing the Tribunal with a ‘statement from visa applicant and other visa applications’.

8. On 25 March 2024, the applicant emailed the Tribunal indicating that her family arrived in Australia in 2013 after her husband secured employment under a 457 skilled work visa sponsored by a business owner named [Ms A]. In 2016, [Ms A] demanded AUD30,000 from the family claiming that the money was required to assist with the permanent residency process. The applicant borrowed the money from dangerous lenders in Vietnam, at a high interest rate, and paid [Ms A]. [Ms A] absconded, leaving the applicants to become unlawful.

9. The applicant claims that her family in Vietnam has faced extreme intimidation and violence from criminal lenders who have issued threats to kill the applicant and her family in Vietnam. They have destroyed the applicant’s parents’ home and stole their possessions, forcing them to flee their home. In support, the applicant provided the Tribunal with a witness statement from her parents, dated 23 March 2024, and statutory declarations from the applicant and her brother in Australia, declared on 25 March 2024.

10. In addition, the applicant reiterates that her sons spent their entire childhood in Australia, have been educated in Australia, and that Australia is the only home they have ever known. Her eldest son is studying [and] the family has been based in Australia for 10 years. The applicant maintains their claim that their lives will be in danger if returned to Vietnam.

11. The applicants attended the hearing on 3 April 2024. The hearing was held in person at the Tribunal’s Perth Registry.

12. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants and the interpreter confirmed that they understood each other, and no issues were raised about the interpretation services provided by the interpreter. I am satisfied that the applicants have had a real and meaningful opportunity to participate in the hearings before the Tribunal. I have discussed their evidence in my consideration of their claims set out below.

13. After the hearing, on 11 April 2024, the applicant and her husband provided the Tribunal with further statements, including statements from their family members and a neighbour in Vietnam. This information was provided to the Tribunal in response to a s 424A invitation, which is discussed below.

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether there is a real chance that the applicants will suffer serious harm if returned to Vietnam for reasons of their race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm.

21. For the reasons set out below, I have decided to affirm the decision under review.

    ANALYSIS, FINDINGS AND REASONS

    Country of reference

22. The applicants provided the Tribunal with their valid Vietnamese passports. This included the applicant’s passport issued on [date] 2020 and valid until [date] 2030, her husband’s passport issued on [date] 2022 and valid until [date] 2032, and their sons’ passports which remain valid until 2032 (eldest adult son) and 2027 (younger son). At the hearing, the applicant and her husband confirmed that they and their children were born in Vietnam and are citizens of Vietnam.

23. I accept that the applicants are citizens of Vietnam. Vietnam is the receiving country for the purposes of this assessment.

    Background

24. The applicant has consistently claimed that she arrived in Australia with her husband and two sons in 2013 as Temporary Work (Skilled – Subclass 457) visa holders. At the hearing, the applicant confirmed that [Ms A], a business owner in Australia who is related to her, sponsored the applicant to come to Australia and work with her. The applicant stated that she worked with [Ms A], as a [Occupation 1] at her [business], from the time she arrived in Australia in 2013 until about June or July 2016. During that period, the applicant’s husband worked at a farm.

25. At the hearing, the applicant stated that after about June or July 2016, she moved to work with another employer as a [Occupation 1], and that she continues to work there on a part‑time basis of about 20 to 30 hours per week. She stated that her husband also works with her at the [business] 3 days per week and works at the farm as a seasonal worker.

26. Regarding the applicant’s sons, she confirmed that her eldest son completed high school and works at a factory but has applied to [study]. The youngest son is still at school, currently in [a grade].

27. At the hearing, the applicants confirmed that they have family residing in Vietnam and that they travelled to Vietnam in 2015 and stayed with the applicant’s parents for a period of about 3 weeks. As indicated in the delegate’s decision, the applicant also confirmed that in 2016, she went to Vietnam where she remained for a period of a week, in September 2016.

28. I accept the applicant’s evidence set out above.

    Applicants’ claims for protection

29. The applicant claims that in 2016, her sponsor and employer, [Ms A], demanded a sum of AUD30,000 to continue sponsoring the applicants and assist them with obtaining permanent residency. As the applicants were not able to come up with the amount of money demanded of them, the applicant returned to Vietnam and borrowed money from loan sharks at a high interest rate. It is claimed that after paying [Ms A], she absconded without fulfilling her obligation, leaving the family in jeopardy of becoming unlawful and prompting them to apply for protection visas to remain in Australia. The applicants claim that as the loan sharks have not been repaid, their family members in Vietnam have been threatened and they fear that returning to Vietnam will place them in danger of being harmed by the loan sharks who are continuing to pursue the applicant due to her failure to make repayments.

30. At the hearing, the applicant said that after she paid [Ms A] the sum of AUD30,000, [Ms A] informed the applicant that she was unable to secure the lease for her business premises. As [Ms A] could not continue her business, she could no longer sponsor the applicant.

31. In determining whether the applicant is entitled to protection in Australia, it is necessary for the Tribunal to make findings of fact on relevant matters. The Tribunal’s task of fact‑finding may involve an assessment of an applicant’s credibility.

32. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] The Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions.

    [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

33. Further, in assessing the credibility of an applicant’s claims, the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    [2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019.

    [3] MIMA v Rajalingam (1999) 93 FCR 220.

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

34. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify or assist the applicant in specifying any particulars of his or her claims, or to establish or assist the applicant in establishing his or her claims. Nor is the Tribunal required to accept uncritically any or all the allegations made by the applicant.[5]

    [5] MIEA v Guo (1997) 191 CLR 559; Prasad v MIEA (1985) 6 FCR 155; s 5AAA of the Act.

35. While I accept that [Ms A], who the applicant worked for as a [Occupation 1] at her [business] from 2013 to 2016, was not able to continue with her business and sponsor the applicant, for the reasons set out below, I have serious concerns about the credibility of the applicant’s claim that she went back to Vietnam in 2016 to borrow AUD30,000 from the loan sharks as claimed.

    The loan/supporting evidence/lack of repayment

36. At the hearing, the applicant said that it was around the end of 2015 or early 2016 that [Ms A] demanded the money and that she went to Vietnam to borrow the money in September 2016. When asked if in that period she considered securing the money from Australia, the applicant said that she asked colleagues who refused to assist and that she did not go to a bank to borrow the money. When asked if she had made inquiries in this regard, the applicant said that she did not because she was of the view that she was unable to borrow money from a bank in Australia. While I accept that the applicant may have been of the view that she was unable to borrow money from an Australian bank, I have some concerns that she resorted to travelling to Vietnam to borrow money from loan sharks at high interest without making any inquiries about the possibility of obtaining a loan in Australia.

37. I found the applicant’s evidence about how she secured the loan and the terms of the loan vague. It took a great deal of questioning to illicit information and details in this regard. The applicant said that she was introduced to the loan shark by her family’s neighbours in Vietnam and that she talked to the loan shark before traveling to Vietnam. While she claims that she signed a deed, she said that she did not have a copy of the deed and that it is only given to victims after the loan is repaid. When asked about the interest on the loan, the applicant said that the deed did not express the interest rate and that she was required to pay AUD2,000 of interest per month. Given the applicant’s evidence that she had communicated with the loan shark while in Australia to arrange the loan and signed a deed when in Vietnam, I have some concerns about the vague nature of her evidence at the hearing and find it difficult to accept that she would have travelled to Vietnam to secure the loan from a loan shark without understanding the terms of the loan or obtaining a copy of a deed she claims she signed.

38. Regarding my questions about how she brought the money to Australia and paid [Ms A], the applicant said that she brought AUD8,000 in cash and the remaining AUD22,000 was transferred to an account in Australia. When asked if she had any evidence to show the transfer of the AUD22,000, the applicant said that she had no documents. When I expressed that she must have been provided with something to show that she transferred AUD22,000 from Vietnam to Australia, the applicant said that it was not transferred in the ‘normal way’. She said that in Vietnam she gave the money to someone in Vietnamese currency and when in Australia she was given Australian dollars. When pressed to give details, the applicant said that she was introduced to someone in Vietnam by friends who took the money from her and then she came to Australia and was introduced to someone in Australia who gave her the Australian dollars and that it was just one transaction. I find it difficult to accept that the applicant would hand over such large amount of money to people who she was introduced to by friends rather than using the usual money transfer channels. While the applicant claims that she was unaware of how to transfer money between the countries, at the time the applicant and her husband had been living and working in Australia for over 3 years. In addition, when asked if she had made any repayments towards the loan, the applicant said that she had transferred AUD1,000 and AUD950 to her parents in Vietnam to pay the loan sharks. Furthermore, the applicant’s husband at the hearing also indicated that they had been transferring money to Vietnam to assist with his sister’s expenses. This indicates that the applicant and her husband were aware of the availability of channels to transfer money between the countries.

1. The applicant also claimed that she did not have any evidence of giving [Ms A] the money because she paid [Ms A] AUD30,000 in cash. When I asked why she had not transferred the money to [Ms A] by bank transfer given that she had been working in Australia for 3 to 4 years and had a bank account, the applicant said that she was told to pay the money in cash. In response to my observation that it was a large amount of money, and one would expect that she would have wanted to have a record of giving [Ms A] the money, the applicant said that [Ms A] told her that she needed the money and that she did not think that [Ms A] would cheat her. As expressed at the hearing, I have significant concerns that the applicant would have given [Ms A] such a large amount of money without obtaining a record of the exchange of money, whether by bank transfer or other documents, purely on the basis that she did not think that [Ms A] would cheat her.

2. While the applicant stated that initially she did transfer money to her family in Vietnam to pay the loan sharks, she said that she could not present the Tribunal with money transfer receipts because she did not keep the receipts and did not think she would need it. Given that the applicants made their protection visa application on the basis of their inability to repay the loan, I am not convinced that if she did make repayments or transferred money to her family for this purpose that she would not have retained and produced the receipts in support of her claims.

3. In addition, the applicant’s and her husband’s evidence is that they have been working since their arrival in Australia in 2015. As discussed at the hearing, their failure to make repayments or renegotiate the loan terms, particularly given that their claims that their close family members in Vietnam have faced continued harassment, intimidation and threats, undermines the credibility of their claim and that they hold a genuine fear if returned to Vietnam. I do not accept the applicant’s explanation that she could not make any repayments to reduce the risk of harm to her family in the years that she and her husband have remained working in Australia.

4. The applicant’s inability to present any supporting evidence to substantiate her claims that she borrowed and transferred AUD30,000 from loan sharks in Vietnam and paid [Ms A] in Australia, in my view, is not because she did not know of money transfer facilities, or that she paid [Ms A] in cash because she did not think [Ms A] would cheat her, or that she did not retain any receipts of money transfers to Vietnam but, rather, these assertions are strong indicators that she has not been truthful in this regard and has not borrowed money from loan sharks as claimed. In addition, the applicant’s, and her husband’s lack of any attempts to make repayments towards the loan or to renegotiate the loan, given that they claim that the loan sharks were in regular contact with their family members, detracts from the credibility of their overall claims in this regard.

   Inconsistencies in evidence

5. At the hearing, while the applicant claimed that she brought AUD8,000 with her to Australia in cash, her husband’s evidence was that the applicant did not bring any amount of cash with her after borrowing money from the loan sharks in Vietnam.

6. Regarding the consequences of the applicant’s failure to repay the loan sharks, the applicant claims that her parents have faced continued intimidation and violence, including the destruction of the applicant’s parents’ house, having their possessions stolen and that her parents have been forced to flee their family home due to fear for their safety. At the hearing, the applicant said that at the end of 2016, the loan sharks came to her parents’ home and continued to come every week, making threats of harm, damaging the home and throwing dirty things at the house. The applicant claimed that this has continued in the last 8 years and that the loan sharks have told her family that if the applicants return to Vietnam they would be killed. When asked if her parents had sought assistance from the police, the applicant said that they had, but by the time the police arrived, the loan sharks had left and the police could not do anything. When asked if she had any evidence of such police reports given that she claims that this has continued for 8 years, the applicant said that she did not, as in the view of the police, nothing had happened, there was no assaulting or killing and no evidence to prove the matter. When referred to her evidence that the loan sharks had damaged the house and thrown things at the house, and this suggested that there was some evidence of the events, the applicant vaguely referred to the loan sharks using weapons to hit the gate and fence, and that there was no serious or obvious damage. I found the applicant’s evidence in this regard problematic and, in light of the discussions below, I have significant concerns about the credibility of the claimed events.

7. Regarding the applicant’s claim that her parents were forced to flee their family home, the applicant said that they moved to her sister’s house, about 30 minutes from their family home. In contrast to her earlier evidence that the loan sharks have continued to intimidate her family members in the last 8 years, the applicant confirmed that the loan sharks did not visit her sister’s home and that her family has had no further contact with the loan sharks since about 2021 or 2022, but the neighbours have informed her parents that the loan sharks continue to visit the family home, banging doors and the gate. The applicant did not refer to any other members of her or husband’s family having been approached or threatened by the loan sharks.

8. At the hearing, the applicant’s husband gave evidence that his brother has been threatened by the loan sharks because of their inability to repay the loan. He said that his brother had been threatened from time to time since 2016. When questioned about the frequency of the threats and whether the matter was reported to the police, the applicant’s husband vaguely referred to the matter having been reported to the police, that they continue to come, and that his brother informed him that they would be killed if returned to Vietnam. In response to my observation that he was presenting his evidence in a very vague manner and that it appeared to me that he was not being truthful in this regard, the applicant’s husband said that he was telling the truth, his brother informed him of this, and that he told the applicant about it. The applicant’s husband did not refer to the applicant’s parents having been threatened or forced to flee their home.

9. At the hearing, I referred to the inconsistencies between the applicant’s and her husband’s evidence. The applicant stated that her husband had issues with his mind and forgets things quickly. Regarding the issues with the applicant’s husband’s mind, the applicant referred to her husband suffering from nose inflammation which affected his mind. When I observed that this did not explain the discrepancies in their evidence, the applicant then said that she did not share everything with her husband and that he was not fully aware of how the applicant borrowed the money.

10. After the hearing, pursuant to s 424A of the Act, the applicants were invited to respond to information that I considered may be the reason or part of the reason for affirming the decision under review.

11. The invitation particularised the differences between the applicant’s and her husband’s evidence about how she brought the borrowed money to Australia and the threats made against family members in Vietnam. In particular, the invitation indicated that while the applicant’s evidence at the hearing was that she brought AUD8,000 cash with her on return to Australia, her husband expressly stated that she did not bring any cash with her when she returned from Vietnam. Furthermore, while the applicant’s evidence is that due to her inability to repay the loan sharks, her parents were harassed, threatened and had to move away from their residence to avoid further interaction with the loan sharks, she did not mention or refer to any members of her husband’s family having been approached or threatened by the loan sharks. However, the applicant’s husband’s evidence was that the only family member threatened by the loan sharks was his brother, that his brother informed him of the threats and did not refer to the applicant’s parents or any other family member having been approached by or threatened by the loan sharks.

12. It was explained that this information was relevant to the review of their protection visa application because, subject to their comments, it may cause the Tribunal to doubt the credibility of their claim that the applicant borrowed money from loan sharks or that their family members have been threatened by the loan sharks as claimed. The invitation outlined that if the Tribunal relies on this information in making its decision, it may be the reason or part of the reason for affirming the decision under review and that the Tribunal may find that the applicants do not have a well-founded fear of persecution if they return to Vietnam or that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.

13. In response to the invitation, the applicant and her husband emailed the Tribunal with further statements from the applicant’s parents’ neighbour and other family members in Vietnam. I have dealt with the supporting statement from various members of the applicants’ family members below.

14. Regarding the discrepancies in their evidence at the hearing, the applicant and her husband provided a statement reiterating their claims raised at the hearing and referred to inconsistencies as minor, unintentional, and that the ‘significant emotional toll’ and ‘intensity of the situation’ may have contributed to misunderstandings and lapses in their memories. In the statement, the applicant for the very first time claims that her husband’s family has also been threatened, and that both sides of the family has been terrorised by the loan sharks.

15. I am mindful of the passage of time since the claimed events and the emotional distress that applicants may endure during the process of their protection visa application, including at the hearings, and do not generally consider minor differences in evidence or minor mistakes or omissions, on their own, to undermine the credibility of claims. In this case, however, I do not accept that lapses in memory or the hearing environment contributed to what I view as significant differences in the applicant’s and her husband’s evidence. As referred to above, at the hearing the applicant referred to her husband’s nose inflammation and said that she did not discuss everything with him as the explanation for the discrepancies in their evidence. This is very different to their explanation now that lapses in memory or misunderstandings are the reasons for the discrepancies. At the hearing, the applicant had the opportunity to indicate whether her husband’s family has also been threatened. Her failure to do so undermines the credibility of her evidence raised in the statement produced to the Tribunal in response to the s 424A invitation.

16. I do not consider that any health issues relating to the applicant’s husband’s nose inflammation as referred to at the hearing, lapses in memory or the hearing environment can explain the differences in the applicant’s and her husband’s evidence. Given that the applicants claim that they will be harmed, or even killed, if returned to Vietnam because the applicant borrowed a substantial amount of money from the loan sharks and that their family members have faced continued harassment and threats, I do not accept that the applicant and her husband would not have discussed events relating to the borrowing of the loan and issues faced by their family members in Vietnam, in particular information about how the applicant borrowed the money, brought it to Australia, and which family members have faced issues in this regard. I consider the differences in the applicant’s and her husband’s evidence in this regard, when considered in the context of the problematic nature of their overall evidence, to significantly detract from the credibility of their central claim.

    Witness statements

17. Prior to the hearing, the applicants provided the Tribunal with witness statements from the applicant’s parents in Vietnam and her brother in Australia.

18. At the hearing, I referred to the applicant’s evidence at the commencement of the hearing that her parents continued to reside at their family home with the applicant’s younger brother, and that later during the hearing, when discussing threats made against the applicant’s parents, she indicated that her parents moved with her sister, who resides about 30 minutes away from their family home, in about 2021 or 2022. The applicant stated that her parents did move away from their family home and reside with her sister because the loan sharks threatened them.

19. The applicant was asked to give her parents’ family home address, which she did, and I noted it was the address referred to in the parents’ witness statement. The statement indicates that the applicant’s parents are ‘currently residing’ at that address. When I observed that the applicant’s parents’ declaration, dated 23 March 2024, indicates that they reside at their family home and that this undermined the applicant’s claim that they have moved from that address in 2021 or 2022, the applicant said that in Vietnam, people have household registration and use the registered address. While I accept that citizens in Vietnam have to register their residential address with the authorities and use that address in official dealings with the government, given that the applicant’s parents’ witness statement is produced in support of the applicants’ protection visa application, I do not accept that the applicant’s parents would refer to their registered address as their current home  address and claim that they continue to reside at that address if that was not the case. In addition, the statement is written in very general terms and indicates that they ‘abandoned their homes and properties to flee elsewhere’ without providing any details as to where they fled or which properties were abandoned. As put to the applicants at the hearing, I do not give this statement much weight in my assessment of the applicants’ claim and consider it to undermine their claim that the applicant’s parents fled their home or that this was due to threats made by the loan sharks as claimed.

20. Regarding the applicant’s brother’s statement, the applicant said that her brother has been living in Australia since 2003. When asked if he had returned to Vietnam at any time, the applicant stated that she could not recall, even if he had she was not told, and that he may have gone to Ho Chi Minh City to visit his girlfriend but never returned to the applicant’s family’s area due to issues with the loan sharks. I referred to the evidence in the applicant’s brother’s statement which indicates that he had personally witnessed loan sharks coming to their parents’ home in Vietnam, and I observed that the applicant’s evidence that her brother has never returned to their family home or area due to threats from the loan sharks undermined the credibility of what is written in the statement. The applicant stated that her brother’s evidence is based on what he has been told by others. I consider that the statement includes information that is false, in that he falsely claims to have witnessed events, and is based on what the applicant’s brother has been told to include in his statement. I do not give this statement any weight in assessing the credibility of the applicants’ central claim.

21. The short statements from the applicant’s husband’s brother, the applicant’s sister and her parents’ neighbour reiterate the applicant’s claims in general terms without further details or specificity. The applicant’s parents’ neighbour’s statement indicates that the applicant’s parents reside at their family home. The applicant’s sister’s statement indicates that her parents were forced to live with her temporarily, without giving any details of when this occurred or when her parents’ home was ‘destroyed’. The applicant’s husband’s brother’s statement is also in general terms and does not provide details of when the loan sharks came to his house and indicates that the loan sharks ‘often come to curse and destroy things’ without providing details of the events. While I accept that these statements have been provided in support of the applicants’ claims and in response to concerns raised about the credibility of their central claim, I do not consider that the broad and general nature of evidence within this statement provided to corroborate the applicants’ claims alleviates my overall concerns about the credibility of the applicant’s evidence in this regard.

    Overall conclusion

22. I accept that the applicant’s employer, [Ms A], was unable to continue with her business and sponsor the applicant to remain working in Australia, and that the applicants applied for protection visas to continue to remain and work in Australia.

23. In light of what is discussed above, I do not accept that the applicant returned to Vietnam in 2016 to borrow money from the loan sharks to pay her employer or that the loan sharks have threatened the applicants’ family members in Vietnam as claimed. I consider that the applicants have invented these claims and obtained supporting statements from their family members, in an attempt to bolster their claims for protection. I reject the applicants’ claims and evidence in this regard in their entirety.

    Additional matters

24. The applicant and her sons have made claims that the applicant’s sons have been living in Australia since they were young, they have been educated in Australia and call Australia home. They claim that it will be difficult for them to return to Vietnam.

25. At the hearing, the applicant’s sons gave evidence indicating that they want to remain in Australia, further their studies and become contributing members of the Australian community. The applicant also referred to her inability to pay for their education, and her eldest son made references to educated people finding it difficult to obtain employment in Vietnam.

26. While the applicant and her sons indicated that they were unable to speak Vietnamese, I noted that they arrived in Australia when they were [age] and [age] years of age, that they knew the language before coming to Australia, and that the applicant’s eldest son also attended school in Vietnam. Furthermore, I noted that the applicant and her husband gave evidence in Vietnamese suggesting that they have limited English language abilities, which indicates that their sons know a level of the Vietnamese language to be able to communicate with them at home. It was established that the applicant’s sons, who I note also returned to Vietnam in 2015 for a visit, are able to have an understanding of the Vietnamese language and are able to communicate in the Vietnamese language, albeit not at the same level of the applicant and her husband.

27. In discussing country information about the education system in Vietnam,[6] the applicant’s eldest son having completed high school in Australia and their desire to remain in Australia, I acknowledged that they may initially face some difficulties in adapting to a different environment and speaking a different language. I indicated that these issues and challenges did not appear to me to amount to serious harm or significant harm. I also indicated that there is no information to suggest that the applicant’s sons will be denied access to education, which is universal by law in Vietnam, or to the employment market, for any of the reasons under s 5J(1) of the Act, or that they would face any treatment that would meet the definition of significant harm. The applicant’s son reiterated their desire to remain in Australia and that they wished to study, work and become contributing members of the society. As explained at the hearing, while I have no doubt that they will be contributing members of the Australian society, in determining the review application I have to assess whether they faced a real chance of serious harm or were at a real risk of significant harm if returned to Vietnam.

    [6] DFAT, ‘DFAT Country Information Report – Vietnam’, 11 January 2022, 20220111094403.

1. Considering the applicant’s and her son’s evidence in the context of the country information and the applicants’ particular circumstances, I am not satisfied that the applicants face a real chance of serious harm or are at a real risk of significant harm for these reasons.

   Ministerial intervention

2. At the hearing, I noted that the applicants have made references to Ministerial intervention. I noted that the Tribunal had no legal obligation to do so and that the applicants may make an application for Ministerial intervention independent of the review process.

   Conclusion

3. Considering the applicants’ circumstances as a whole and in light of what I have accepted of their claims, I am not satisfied that the applicants face a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5J of the Act.

4. The applicants do not meet the requirements of the definition of refugee in s 5H(1). The applicants do not meet the criteria under s 36(2)(a) of the Act.

5. The Federal Court[7] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. Given my findings and reasons set out above, I am also not satisfied that the applicants face a real risk of significant harm if returned to Vietnam.

   [7] MIAC v SZQRB (2013) 210 FCR 505.

6. I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for any reason. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

7. Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who (i) is mentioned in s 36(2)(a) or (aa) and (ii) holds a protection visa of the same class as that applied for by the applicant.

8. As none of the applicants meet the definition of refugee or the complementary protection criterion, and there is no suggestion that they are a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act who holds a protection visa, it follows that they also do not meet the family unit criterion in either s 36(2)(b) or s 36(2)(c).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Samira Kamandi
   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.

   …