1813204 (Refugee)
[2023] AATA 2411
•5 June 2023
1813204 (Refugee) [2023] AATA 2411 (5 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Khanh Ngoc Hoang (MARN: 5510684)
CASE NUMBER: 1813204
COUNTRY OF REFERENCE: Vietnam
MEMBER:Andrew McLean Williams
DATE:5 June 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 June 2023 at 12:02pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion – unified Buddhist – particular social group – victim of loan sharks – corruption – physical assault – Formosa Chemical spill – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZLVC v MIAC [2008] FCA 1816
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 24 April 2018 thereby refusing to grant the Applicant a protection visa, pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant - who is a citizen of Vietnam - had applied for the visa on 20 June 2017. The Delegate refused to grant the visa after having determined that the Applicant is not a person to whom Australia owes protection obligations.
The Applicant appeared before the Tribunal on 23 May 2023 for the hearing of this Application for Review. The Tribunal also received oral evidence from the Applicant’s spouse, [Ms A], who had lodged her own protection visa application, and Application for Review, on ostensibly the same grounds as those raised by the Applicant. This hearing was conducted as a joint hearing, together with the Application for Review commenced by [Ms A]. 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 by Ms Kate Hoang (MARN 5510684), Principal Solicitor of the Oxford Law Group, Fairfield, NSW. Ms Hoang also attended the Tribunal hearing in Brisbane, yet by means of audio-visual link from Sydney.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act, and in 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); s.36(2)(aa); s.36(2)(b); or in s.36(2)(c). That is, he or she must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)); or, on other ‘complementary protection’ grounds (s.36(2)(b)); or, must be a family member of the same family unit as another person who holds a protection visa of the same class: s.36(2)(b) & (c).
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 qualifies as a “refugee”.
A person qualifies as 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 will qualify as 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 on grounds of race, religion, nationality, membership of a particular social group, or because they hold a particular political opinion; or 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 receiving 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 then set out, in ss.5J(2)-(6) and in ss.5K-LA, which are now 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 still meet the criteria for the grant of a protection visa if they are 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 they 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 then set out in ss.36(2A) and 36(2B), which are also now extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, as made under s.499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and the 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
The issue in this case is whether the Applicant is owed protection obligations under the Migration Act. For the following reasons the Tribunal has concluded that Australia does not owe the Applicant any protection obligations, such that the decision under review should be affirmed.
At the outset, the Tribunal accepts the identity of the Applicant is a citizen of Vietnam, and accepts that the Applicant has no entitlement to live in any third country, other than either Vietnam, or Australia. For the purposes of this assessment Vietnam is the “receiving country”.
Visa History
On 25 May 2017, the Applicant was granted a visitor visa (FA600). The Applicant departed Vietnam on a commercial flight and arrived in Australia [in] June 2017.
On 20 June 2017 the Applicant applied for a permanent protection visa (Class XA 866).
Original Protection Claims:
In his protection visa application lodged on 20 June 2017 (signed by the Applicant on 14 June 2017), and as stated in response to questions 89, 90, 91, and 94, the Applicant specified the following as the reasons for his seeking protection in Australia:
[89]I LEFT MY OWN COUNTRY BECAUSE DISTRUST OF THE JUDICIARY AND LOW [sic] ENFORCEMENT, POOR SYSTEM OF GOVERNMENT, BUREAUCRACY STARTING FROM THE LOWEST LEVER [sic] UP TO THE TOP. THE DISTRUCTION [sic] OF THE GLOBAL ECONOMY IMPACT ON THE NATION’S ECONOMY. POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, I HAS BEEN LIVING IN HARSH CONDITIONS SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I LIVE IN MENTAL DISTRESS AND FEAR. MANY PEOPLE IN VIETNAM HAVE PROBLEM LIKE ME, WHO BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED.
SO I’M CHOOSE AUSTRALIA TO BEING LIVE MORE BETTER FROM MY COUNTRY. HOPE THE GOVERNMENT OF AUSTRALIA CAN GIVE ME HOPE TO GET AND MAKE CONCIDERATION [sic] TO APPROVE MY APPLICATION FOR PROTECTION.
ALL COOPERATION FROM GOVERNMENT AND THE MENISTER [SIC] OF IMMIGRATION I WOULD LIKE TO SAY THANK YOU VERY MUCH
[90]IF I RETURN TO MY COUNTRY, I WILL GET CAUGHT BY CREDITOR AND COULD BE BEATEN, INJURED OR KILLED. THEY WILL SEARCHING ME.
[91]YES, I ALREADY EXPERIENCE HARM IN THAT COUNTRY BECAUSE I ALREADY RECEIVED VERBAL THREATENED FROM THEM TO HURTING ME. BESIDES THAT, I LIVE IN HARDSHIP (BECAUSE THE BAD ECONOMY)
[94]YES I WILL LIVE IN HARSH CONDITIONS, SUFFERED DISCRIMINATION FOR TAWAINESE WOMEN [Emphasis not in the original, yet included here, by the Tribunal].
In the decision now under review, the Delegate summarised the Applicant’s protection claims as follows:
•She [sic] left Vietnam due to a distrust of the judiciary, law enforcement, poor system of government and the failing economy.
•unemployment is a major issue in Vietnam.
•she [sic] was living in difficult conditions, so much so the Applicant had to borrow money from her relatives.
•she [sic] cannot repay the debt.
•she [sic] lives under severe stress and fear.
•there are many people in Vietnam in a similar situation who have been killed or injured as they are unable to repay their debts.
•she [sic] fears being beaten or killed by the creditors who loaned her the funds upon return to Vietnam.
•She [sic] is unable to relocate within Vietnam due to socio-economic reasons.
Oral Evidence:
The Applicant’s spouse [Ms A] sought to raise new claims referable to her being a Unified Buddhist by way of a new statement dated 22 May 2023. The present Applicant did not submit a new statement making these particular claims, however it became clear from the evidence and claims made by [Ms A] that her claims referable to her being a Unified Buddhist were also intended to be applicable to the present Applicant, [named], as well. The claims made by [Ms A] in the new statement have been dealt with by the Tribunal in its reasons for decision dated 4 June 2023 in related matter 1812952, referable to [Ms A], which was heard at the same time as the claims made by [the applicant].
During the Tribunal hearing, the Applicant said that he had raised fish and prawns as part of an aquaculture enterprise with his spouse [Ms A], and they had borrowed money from loan sharks. However, the hatchlings had all died in consequence of the Formosa Chemical spill, meaning that there was no harvest, and no ability to repay the loans.
The Applicant was asked by the Tribunal, a number of times, to provide further details of the specific circumstances of the loans, and of the names of the creditors, however, the Applicant did not ever provide details of any of the claimed creditors, or loans, and did no more than repeat that “several billion Dong” had been borrowed from “loan sharks”.
No effort was made by the Applicant to elaborate on his initial claims regarding distrust of the judiciary or his distrust of law enforcement in Vietnam. Nor did the Applicant seek to expand on any of the original claims regarding Vietnam ‘having a poor system of government and bureaucracy, from the lowest levels up to the top’. Nor was any effort made by the Applicant to explain why, initially, in his Protection Visa Application signed on 14 June 2017 references were only made to having borrowed monies from relatives without there being any express reference to loan sharks, or black market money lenders. Loans from black market lenders were not specifically referenced by the Applicants until the receipt by the Tribunal on 22 May 2023 of the new statement, as made by [Ms A]. No additional evidence, - beyond that contained in and accompanying the new statement by [Ms A] - was provided by [the applicant] during his oral evidence before the Tribunal that was referable to alleged claims of discrimination or persecution because of his being a Unified Buddhist.
Post-hearing submissions:
At the conclusion of the Tribunal hearing, the Applicant’s solicitor was afforded with leave to make further written submissions in relation to the Applicants’ oral evidence. On 30 May 2023, written submissions were received. These comprise a 17-paragraph submission traversing the political history of the Unified Buddhist Church in Vietnam.
The submission is expressed at the level of historical generality, relating to events prior to 1975, and makes no express factual claims that are specifically referable to either of the Applicants, other than to repeat the claim of their each being members of the Unified Buddhist Church. The submission does not deal with any matters expressed by the Applicants during the giving of their oral evidence.
Accompanying the 17-paragraph post hearing submission were the following further documents:
(i) an internet article (published on 1 March 1995), entitled Vietnam: The Suppression of the Unified Buddhist Church;
(ii) an internet article (first published in Luat Khoa Magazine on March 30, 2022) entitled: “Plum Village and its three obstacles in Vietnam”; and
(iii) an internet article published by the Viet Bao Foundation on 2 January 2023 entitled: “The Central Clergy Council of GHPGVNTN Announces the Brief Regulations for Temporary Operation and Establishment of Two Courts for the Propagation of the Dharma and the Proclamation of the World, together with the Office of the Patriarchal Institute”.
The articles accompanying the submissions are not referenced in any way in the body of the submission prepared by Ms Hoang. The article listed above as (i), from 1 March 1995, relates to events that took place 28 years ago. The Plum Village article (item (ii) as listed above), describes efforts by the Unified Buddhist Church to negotiate with the Vietnamese government for acceptable regulatory arrangements for its on-going operations in Vietnam. The Plum Village article does not suggest that the Unified Buddhist Church has been rendered completely unable to operate in Vietnam in consequence of government suppression. The article from the Viet Bao Foundation (item (iii), above), appears to do no more than report on internal governance and administrative arrangements within the Unified Buddhist Church of Vietnam in the aftermath of a recent meeting of its Central Clergy Council. The Tribunal does not regard this article as evidence of anything more than that the Unified Buddhist Church continues to operate in Vietnam.
Relevant Country Information
The Tribunal is required, by reason of the Ministerial Direction, to take account of official ‘Country Information’ assessments, as prepared for protection visa assessment purposes, by DFAT. The Vietnam Country Information Report dated 11 January 2022 contains the following passages that touch upon matters raised by the Applicant:
Buddhists
3.40 Most Buddhists practice Mahayana Buddhism (recognisable in Chinese and Japanese ‘Chan’ or ‘Zen’ Buddhism) but some Theravada Buddhists (more recognisable in South Asian expressions of Buddhism) from the ethnic Khmer community also practise in Vietnam.
3.41 Groups registered with the Government experience few restrictions. High-profile Buddhist exiles and arrestees are typically also involved in advocating political change, such as for religious freedom. It can be difficult to separate out discrimination due to religion and political opinion in these cases.
3.42 DFAT assesses that Buddhists who belong to registered organisations and are not politically active face a low risk of official discrimination. Those engaged in independent sects or unregistered Buddhist organisations face a moderate risk of official discrimination, particularly if they also advocate for political change, including for religious freedom.
Hoa Hao
3.43 Hoa Hao is a Vietnamese school of Buddhism formed in 1939. It has had some political history, first opposing French colonialism then backing Ho Chi Minh’s nationalism and later supporting US-backed South Vietnam President Ngo Dinh Diem. Hoa Hao Buddhists mostly live in the Mekong Delta.
3.44 As with other religions in Vietnam, a distinction should be made between registered and unregistered congregations, and those that engage in political activity and those that do not. According to diplomatic sources quoted by the UK Home Office in a February 2020 report, the number of unregistered adherents is probably small and they live in remote areas with few economic opportunities. Several followers were sentenced in 2018 to between six and 12 years in prison for using loudspeakers to protest against Government treatment of the group and for spreading anti-Government messages on social media. Media reports describe alleged police beatings at unregistered Hoa Hao protests in 2019 and 2020.
3.45 DFAT assesses that adherents of registered Hoa Hao groups face a low risk of official discrimination. Unregistered Hoa Hao adherents face a moderate risk of official discrimination. Those who engage in anti-Government activities face a higher risk. Hoa Hao adherents may have low levels of education and political understanding which may expose them to further risk.
People who loan money from loan sharks
3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
3.105 Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
Formosa Incident:
3.66 The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
3.67 It is difficult to predict when a protest will escalate or attract Government attention. As with other protests, Government action might depend on the local government authority and its priorities. Overall, DFAT assesses that land and environmental protesters face a moderate risk of official discrimination.
[emphasis not in the original, yet included here, by the Tribunal]
Assessment of the Applicant’s Claims and Evidence:
Religious Persecution Claims:
The Tribunal accepts that the Applicant is Buddhist, and that he is a member of the Unified Buddhist sect.
The Tribunal is however entirely unpersuaded regarding the Applicant’s claims of religious discrimination now amounting to a well-founded fear of persecution as defined in the Migration Act. The Applicant’s religious persecution claims are broad and vague, and are not accepted by the Tribunal as creditable. No specific evidence sufficient to persuade the Tribunal that the Applicant has personally suffered from religious discrimination has been presented. Nor has any evidence been presented by the Applicant to suggest that he held any kind of role of prominence within the Unified Buddhists, or that he has ever publicly advocated in Vietnam for either political change, or religious freedom in his capacity as a Unified Buddhist. In the absence of evidence of that kind, the Tribunal considers that the Applicant is not at risk what can be categorised as a “well-founded” fear of persecution.
The Tribunal does not accept that the Applicant would face harm in Vietnam on religious grounds; and is not satisfied that there is a real chance that if the Applicant were to be returned to Vietnam he would be persecuted on religious grounds. Therefore, the Applicant is not a ‘refugee’ as defined in section 5H, and the criterion in section 36(2)(a) of the Act is not satisfied on this ground.
Socio-Economic Grounds:
The Applicant also claims to fear harm partly in consequence of ‘socio-economic circumstances’ in Vietnam, and claims to be unable to internally relocate to another part of Vietnam due to ‘socio-economic reasons’. The Applicant further claims that the Vietnamese authorities will not protect him, “because this is a matter of socio-economic”.
The Tribunal infers the Applicant’s answer given in response to question 95 on the Applicant’s original visa application to be an assertion that it is now pointless for him to internally relocate to another part of Vietnam, because the loan sharks/creditors would still be able to find him. This specific issue will be dealt with by the Tribunal further below, as part of the Tribunal’s assessment of the Applicant’s loan shark claims.
Insofar as the Applicant also requests protection due to a fear of socio-economic harm in Vietnam as a discrete claim, the Tribunal is not persuaded that a particular social group (‘PSG’) can be construed as being comprised by persons in Vietnam facing difficult socio-economic circumstances, by reason that the putative group is far too general to define a PSG. The Tribunal is not prepared to accept this to amount to a grounds for fearing persecution for purposes of s.5J(1) of the Act. Moreover, the DFAT country information that the Tribunal is required to consider reveals that Vietnam has experienced very rapid economic growth and that growth in Vietnam’s GDP, when measured on a per-capita basis, has been amongst the fastest in the world since 1990. The Country Information also shows that employment opportunities for Vietnamese citizens - particularly in the manufacturing sector - are plentiful; that unemployment levels are low; and that internal re-location by citizens to other parts of Vietnam in furtherance of better economic opportunities is exceedingly common, that is not prevented, and is oftentimes encouraged by the Vietnamese Government. Accordingly, the Tribunal does not accept that the Applicant would face harm in Vietnam due to ‘socio-economic circumstances’, as the Tribunal cannot be satisfied that there is now a real chance that, if the Applicant were to be returned to Vietnam, he would be persecuted for one or more of the reasons mentioned in section 5J(1)(a) of the Act. Therefore, the Applicant is not a refugee as defined in section 5H on socio-economic grounds, and the criterion in section 36(2)(a) of the Act is not satisfied on this basis.
Fear of harm from creditors/loan sharks
In relation to this claim, the Applicant seeks to claim a fear of either persecution for purposes of s.36(2)(a), or a risk of significant harm for purposes of s.36(2)(aa) by reason that he and his spouse are persons in Vietnam who borrowed monies at usurious rates from “black market” or “loan shark” lenders, and who are now unable to repay their debts, such as to become at risk of violence, or other harm, in consequence.
The Vietnam country information prepared by DFAT, as well as other country information that is available to the Tribunal indicates that money lenders charging usurious rates of interest is a widespread phenomenon in Vietnam. However, it also reveals that the Vietnamese authorities have demonstrated a willingness to tackle the issue. Credible sources have assessed that individuals targeted for unpaid debts are able to obtain Vietnamese State protection. In particular, in the Department of Home Affairs Country of Origin Information Services Section (‘COISS’) assessment Vietnam, Common Claims Summary (October 2022), the following information is recorded (at page 18), in relation to State protection against loan shark activity in Vietnam:
•Authorities have recognised the seriousness of illegal moneylending and have demonstrated a willingness to tackle the activities of illegal money lenders and loan sharks. The Ministry of Public Security (‘MPS’) told a UK Fact-Finding Mission (‘FFM’) in 2019 [that] due to the seriousness of the nature of the crime of ‘black credit’, and other crimes related to it, the government had directed MPS to control the issue.
•Authorities have used law enforcement to break up the activities of criminal gangs involved in loansharking and issue directives instructing financial institutions to assist people in debt.
•Authorities have targeted loansharking gangs, leading to the arrests of thousands of gang members since 2016.
The Tribunal is prepared to accept that the Applicant and his spouse were involved in a failed aquaculture venture, which may have been adversely impacted in consequence of the Formosa chemical spill; and that they received government compensation which they assessed as having been quite inadequate for their purposes.
Assessing whether an Applicant has a fear that is well-founded requires the Tribunal to consider the totality of the circumstances, including the available country information, in light of the totality of the evidence provided by the Applicant, and by his spouse, regarding their claims of having borrowed from loan sharks.
The particulars given by both the Applicant and by his spouse going to the circumstances of the claimed loans have been exceedingly limited, and do not include the names of the creditors or any specific details about the circumstances of the making of the loans, or of any threats that were made to the Applicants in the event of non-payment. When asked about these things by the Tribunal, the answers given by the Applicant, and by his spouse remained generalised, opaque, and non-specific answers, which the Tribunal assesses were part of an effort by each of them to obfuscate the issue, and to keep their claims beyond the reach of necessary examination. In the circumstances, the Tribunal is not able to reach a sufficient state of satisfaction on the evidence to make factual findings, due to a lack of necessary detail and substance in the Applicant’s claims. Although the Tribunal accepts that country information from Vietnam reveals that black market money lending is a common phenomenon, and that unpaid debts owed to criminal gangs may - in some circumstances - result in threats and other reprisal action; that fact - in and of itself - is insufficient for the Tribunal to be satisfied that the Applicants have themselves borrowed monies at usurious rates; and in circumstances that now give rise to a credible threat of future harm to them in consequence. Although the Tribunal remains alive to the need to remain sensitive to the evidential difficulties often faced by Applicants, and of the need to generally afford the benefit of the doubt to those who are assessed as creditable,[1] having had an opportunity to assess the Applicant during the giving of his evidence, and to assess the Applicant’s supporting evidence, the Tribunal determines that the claims are embellished, and do not present as being creditable.
[1] SZLVC v MIAC [2008] FCA 1816 at [25].
Even if the Applicant did borrow monies from loan shark lenders in Vietnam – a claim on which the Tribunal makes no express finding - the available country information is sufficient to enable the Tribunal to conclude that Vietnam as the receiving state is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system. The Tribunal is therefore satisfied that there are effective protection measures available to the Applicant in Vietnam, consistent with what is outlined in section 5LA of the Act such that the Applicant does not have any basis for a well-founded fear of persecution. Therefore, the Applicant is not a refugee as defined in section 5H of the Act, and the criteria in section 36(2)(a) is not satisfied.
Complimentary protection criteria assessment –s.36(2)(aa) of the Act:
The complimentary protection criteria provides that protection is available in the case of an Applicant for whom the Minister is satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the non-citizen being removed from Australia and returned to a receiving country, there is a real risk that the non-citizen will suffer ‘significant harm’. The type of harm that will amount to ‘significant harm’ are exhaustively defined in s.36(2A) and s.5(1) of the Act, and s.36(2B) sets out circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm. Section 36(2C) further provides circumstances in which a non-citizen is taken not to satisfy the criterion in s.36 (2)(aa), and s.36(3) sets out circumstances in which Australia is taken not to have protection obligations in respect of a non-citizen.
The threshold for the ‘real risk’ element in the complimentary protection criterion is the same as that for the ‘real chance’ test, in s.36 (2)(a). The High Court has held the real chance test in the context of refugee assessment is a substantial chance, as distinct from a remote or far-fetched possibility, although it may still be well below a 50% chance. The requirement that there be both ‘substantial grounds’ and ‘a real risk’ suggests that ‘substantial grounds’ imposes an evidentiary standard, and ‘real risk’ an assessment of the probability of the Applicant suffering significant harm. The Full Federal Court has stated that an Applicant’s credibility will be plainly relevant to the question of substantial grounds for believing there is a real risk. The complimentary protection guidelines also view the ‘substantial grounds’ requirement in s.36(2)(aa) as directed to the evidentiary standard to be met.
For the same reasons as are applicable in the case of its findings as regards protection under s.36(2)(a),and because of the availability of what the Tribunal assesses as satisfactory effective State protection measures against loan shark activity in Vietnam for purposes of s.36(2B)(b) of the Act, the Tribunal is not satisfied that there are now substantial grounds for believing that, as are necessary and foreseeable consequence of being removed from Australia and returned to Vietnam there is now a real risk that the Applicant will suffer ‘significant harm’ as outlined in s.36(2)(aa) of the Act.
There is no suggestion that the Applicant satisfies s.36(2) on the basis of his being a member of the same family unit as a person who satisfies ss.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.
Andrew McLean Williams
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
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
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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