1819445 (Refugee)

[2021] AATA 2014

1819445 (Refugee) [2021] AATA 2014 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1819445

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Senior Member Dr N Manetta

DATE:27 April 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 27 April 2021 at 3:02pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – victim of loan sharks – business debts – fear of kidnapping – applicant’s family remained in Vietnam – state protection – return visit to Vietnam – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 June 2018 to refuse to grant the visa applicant, [named], a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] applied for the visa on 2 October 2017. The delegate refused to grant the visa, essentially on the basis that [the applicant] was able to obtain protection from the police authorities in Vietnam in respect of her claim that she or a member of her family would be attacked by a loan shark on account of a substantial outstanding debt she and her husband are unable to repay.

3. [The applicant] appeared before the Tribunal on 18 January 2021 and gave evidence. The Tribunal also received oral evidence from [name], the applicant's sister. The sister’s statutory declaration dated 8 December 2020 was before me.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented before me by her registered migration agent, [Representative A]. [Representative A] attended the hearing.  He had earlier filed a submission dated 16 December 2020, which I have considered.  After the hearing, [Representative A] advised that there were no further submissions [the applicant] wished to make.

5. I note also that [the applicant’s] husband has made an application for a protection visa on the same grounds, which was rejected by a delegate.  His matter came before me on 19 January 2021.

   TASK OF THE TRIBUNAL

6. The task of the Tribunal is to hear and determine the claim for a protection visa afresh on the basis of the evidence adduced before it.  The Tribunal must reach the correct or preferable decision on the evidence before it.  This means that the Tribunal may set aside a decision under review notwithstanding the absence of any discernible error in the delegate’s reasons. Equally, the Tribunal may affirm a decision under review notwithstanding the presence of an error in the delegate’s reasons.

   STATEMENT OF CONCLUSION

7. I have concluded that the decision under review should be affirmed. I set out below my reasons for this conclusion.

   [THE APPLICANT’S] EVIDENCE

8. [The applicant] gave evidence before the Tribunal.  She was age] years of age at the time of the hearing before me, having been born [date] in Hue in Vietnam. Her parents are both still alive, she said, and are still living in Hue. She has a number of siblings. She has one [specified family members]. She gave evidence, which I accept, that her parents, who are now in their [age range], are both involved in [occupation 1]. They are living in their own house, and she gave evidence that they are making enough money to make ends meet.

9. [One sibling] is [an occupation 2] who is married and living in Australia. [Another sibling] is also married, [an occupation 2], and is living here. [Another sibling], who I believe is also [an occupation 2], is living here as well.  [Another sibling] is studying in [Australia]. [Another sibling] is living in Vietnam and works with [the applicant’s] parents as [an occupation 1]. [Another sibling] is living in Australia as a permanent resident having arrived here some eight years ago.

10. [The applicant] completed schooling in Hue up to [grade].  She was around [age] years old when she left school, she said. She gets on well with her parents. After leaving school, she stayed at home for a few years, she said, helping out in the household, and in particular she would help her mother with cooking as the mother was occupied in the family’s [occupation 1] work. She said she stayed at home for some two to three years.

11. After that time, [the applicant] said she secured employment in a [product] factory in Saigon. It was a small factory, she said, and her work involved [producing products].  She said she worked at the factory for some five to six years, from [year range] or thereabouts. She met her future husband while working in Saigon.  He was also working at the factory. In June 2009, they married.

12. [The applicant] said that after their marriage, she and her husband decided to open their own [product] business operating out of their home in Saigon. They were renting a small house there. The [product] business was a joint enterprise with her husband. The business involved [processing resources] delivered to their home. The business went well initially.

13. Difficulties arose, [the applicant] said, after they sought to expand the business. [The applicant] said that she and her husband borrowed money from a disreputable “loan shark”, who charged interest at a rate of [rate]% per annum (or [rate]% per calendar month) on the principal. [The applicant] said she and her husband borrowed [amount] “dong” (the Vietnamese currency). 

14. The purpose of the borrowing, [the applicant] said, was to fund the purchase of [resources] in large quantities with a view to manufacturing [products] and supplying a shop or shops in a market with the finished products.  [The applicant] said that, at first, that is, in 2013, they were able to pay back the agreed interest at [rate]% per month (namely, [amount] dong per month). [The applicant] said they were not paying back principal, just interest.

15. [The applicant] gave the following evidence in relation to the circumstances of the taking out of the loan. She said she had her husband had tried two or three banks but they had all refused to lend the couple money. [The applicant’s] evidence was that the banks had said that the couple lacked assets to serve as collateral for a loan. She said they borrowed money from a loan shark to whom they had been introduced by her husband’s brother-in-law (who was also involved in a [product]-manufacturing business). The brother-in-law had already borrowed money from that loan shark.  He had been successful in his venture. When I asked [the applicant] why she did not borrow money from her husband’s brother-in-law, she replied that they had already borrowed from him (namely, a sum of 100 million dong), and that they could not borrow more. She said that they had also borrowed other amounts from family members (including relatives in Australia) and that the total debt to family members amounted to 200 million dong. She said that the amounts they had borrowed from family were not sufficient to fund their expansion plans, and this fact explains why they approached the loan shark. She was clear that they needed a substantially larger amount so that they could buy [resources]. As I have indicated, [the applicant] said it was her husband’s brother-in-law who referred them to the loan shark. They met at the loan shark’s home. 

16. [The applicant] said that they began to make larger quantities of [products] for supply to a shop or shops in a market, but, in answer to a question from me, she indicated that they did not have firm forward orders for large numbers of [products] at the time she borrowed the money. She said, in effect, that she and her husband decided to take a calculated risk in borrowing the money and expanding the business.

17. She gave evidence that they borrowed [amount] million dong in June 2013 followed by a further [amount] million dong in October 2013. She said business was good to begin with and they were getting many orders for [products]. In 2014, [the applicant] said the orders began to decline gradually and in 2015 her customers began to start closing their shops.

18. At the end of 2015 the loan shark began to demand both the payment of interest and principal, she said, because he saw that they were no longer doing well. I understand that around this time [the applicant] and her husband had defaulted in paying one month’s interest on the loan. [The applicant] said that in March or April 2016, the loan shark, who had become dissatisfied with their delayed payment, threatened that if no money were forthcoming, he would arrange for their son to be kidnapped.

19. [The applicant] said that she and her husband then went into hiding in Hue.  At this time, she said they were owed [amount] dong by their customers. They stayed initially in Hue with relatives and then began to move from one safe house to another such was their fear for their safety.

20. In answer to my question as to whether the couple approached the police on account of the kidnap threat, [the applicant] said that she and her husband did not approach the police, but a family member did approach them on their behalf. She said that the family member returned with a message from the police asking her husband to come in to the station, but her husband was too afraid to do so. [The applicant] did say that the police had said that they could look after them, but not 24 hours per day.

21. In October 2016, [the applicant] arrived in Australia on her own (without her son or husband) on a six-month tourist visa. She said her older sister in Australia paid for the ticket. In answer to my question as to why her husband and son did not also come to Australia at that time in order to hide, [the applicant] replied that her sister could only manage one application. Her son was [age] years of age at the time. [The applicant] returned to Vietnam after approximately six months and stayed with her [Relative A] in Hue for a further five months. Her husband and son stayed there as well.

22. I note that no application for a protection visa was made on the first trip to Australia.

23. On her return to Vietnam, [the applicant] did not go to the police or explore any ways of securing protection for their family.

24. I note that [the applicant] returned to Vietnam in early April 2017 and then re-entered Australia with her husband and son in September 2017, that is, some five months later. She said that she felt safe in Vietnam (that is, with her [Relative A]) and was not as scared as she had been. She said that at the beginning of their ordeal, they had been very scared and kept moving about, but she did not feel as scared when she was living with her [Relative A] in Hue.  On her return to Vietnam, the sister applied for the whole family to come over.  They were successful and flew out to Australia.  Her evidence is that they used the services of a person living in Melbourne to draw up their protection visa application about one month after they arrived. I shall return to the terms of that application in due course.

25. [The applicant’s] sister, [named], gave evidence to me, and, as I have indicated, she also made a statutory declaration dated 8 December 2020. Paragraph [7] of the statutory declaration is in the following terms:

    “My sister said that the loan sharks had threatened to kill her should she not repay her debts. According to my sister she felt scared, so she moved from Ho Chi Minh City to Hue. During this period the loan sharks was (sic) able to track her movements and they continued to hold her ransom.”

26. In her evidence to me, [the applicant’s sister] said her sister had not ever been kidnapped and held for ransom.  She meant simply that the loan sharks continued to pressure the family for money. The statutory declaration otherwise supports in general terms the assertion that [the applicant] and her husband had borrowed money from loan sharks to start a business manufacturing [products] for sale to retail outlets and that her sister had told her that she was having troubles repaying the debts because of a high interest rate.

    CRITICAL FINDINGS OF FACT

27. At this juncture, it is convenient for me to record certain critical findings of fact I have made. In a matter such as this, I believe it is important to extend to an applicant for a protection visa the benefit of a reasonable doubt in respect of the evidence that he or she has given to the Tribunal. I have done so. Nevertheless, I do not accept [the applicant’s] evidence in respect of the alleged loan monies.

28. I have reached this conclusion irrespective of [the applicant’s] husband’s evidence, which he gave to me in his own application; but nothing [the applicant’s] husband said persuaded me of the truth of [the applicant’s] account.  I do not accept that the couple borrowed money from a loan shark and that their lives or the life of their son were at risk on account of their having defaulted in the repayment of loan monies.

29. My reasons for this conclusion are as follows. First, I find it inherently unlikely that any family member, especially one with a business background as the brother-in-law had, would introduce a young couple contemplating a business expansion to a loan shark charging interest at [rate]% per annum. The loan was self-evidently imprudent, and the brother-in-law had already lent the couple money according to [the applicant].  The risks to the young family of failing to pay back the loan shark would have been obvious to the brother-in-law.  They would also have been obvious to [the applicant] and to her husband.

30. I bear in mind that the couple were, on their evidence, attempting to expand the business. It would have made much more sense for them to seek to expand gradually and within their means. On [the applicant’s] evidence the couple had already borrowed some 200 million dong from family members to support their business venture. I do not see how any person would prudently recommend to the couple that they approach a loan shark particularly as the couple had already borrowed from relatives (including the brother-in-law).

31. I accept that young people do imprudent things and may of course borrow imprudently. But I do not believe that within a family there could have been any recommendation to approach a loan shark, or any introduction to one, when the family itself had already provided some 200 million dong to assist the young couple. The imprudence of borrowing a large sum was quite clear given [the applicant’s] evidence that there were no firm forward orders or customer demand warranting the borrowing of a sizeable sum on top of what they had already borrowed from family members. Accordingly, I do not believe that there was any recommendation from [the applicant’s] husband’s brother-in-law that the young couple should begin their expansion with an extortionate loan.

32. Secondly, I note that the borrowing, on [the applicant’s] evidence, occurred in two tranches. First, [amount] million dong was borrowed in June 2013, and then a further [amount] million dong was borrowed some months later. Again, it makes no sense for a second loan to be taken out before it became clear that the first loan was able to be serviced.

33. Thirdly, if [the applicant] genuinely feared for her son’s safety, I believe she would have tried to bring at least her son to Australia on a visa on her first trip.  The entire family was successful in securing visas on her second trip to Australia. Had the family been under threat, I think she would have disclosed to her relatives in Australia the absolute urgency of her departure from Vietnam with at least her son, who, she indicated in her evidence to me, was the target of the kidnap threat made by the loan shark after the couple had defaulted on their interest payment. I did not find [the applicant’s] explanation that her sister could only make or sponsor one application convincing. 

34. Fourthly, it would appear from the evidence that [the applicant] took not steps to apply for a protection visa when she was here on her first trip.  I find this odd given her claim that family were under threat.

35. Fifthly, if she, her husband and her son were genuinely at risk, and had been constantly moving about as she had claimed prior to her first trip to Australia, her evidence that she felt she could live safely with her [Relative A] in Hue from April 2017 to September 2017 seems quite contradictory. I cannot understand how the entire family would live with a single relative in [the applicant’s] home town of Hue when [the applicant] claims the family was under a serious threat. In my opinion, there is a contradiction in [the applicant’s] account here which has not been explained adequately.

36. Sixthly, I found the evidence about the refusal to contact police unconvincing. On [the applicant’s] evidence, a family member attended a police station to report the family’s concerns. The police apparently requested the attendance of [the applicant’s] husband. He did not attend because he was too scared, according to [the applicant]. I find it strange that a family member could attend the police station and make inquiries, but that [the applicant’s] husband would not make those inquiries or seek police involvement for his family’s protection, even when the police requested that [the applicant’s husband] come to the station. Again, the suggestion that [the applicant’s husband] was too scared to attend does not sit well with the decision taken later to live at the [Relative A’s] house for five months continuously (where on [the applicant’s] evidence they were obvious targets).

37. Weighing all the evidence [the applicant] gave, I do not find as a matter of fact that [the applicant] was threatened by a loan shark in the way that she maintained she was threatened or that she or her husband or son were in any danger there. I make this finding even though I have extended to her the benefit of a reasonable doubt.

38. There is another matter that concerns me although I have reached my findings of fact without reliance upon it. When the applicants, her husband and son arrived in Australia in September 2017, an application for a protection visa was arranged with the assistance of someone living in Melbourne as I understood the evidence. The biographical details of [the applicant’s] application have been filled in by hand but the section of the form (beginning at question [87]) contains material that has been typed in (presumably by the agent). The reasons given at question [89] for leaving Vietnam are as follows (all errors in the original):

    “I left my own country because distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distruction of the global economy impact on the nations economy, poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Vietnam have problem like me, who borrowed money had been hit, injured and killed.

    Hope the Menisier of Immigration can give me hope to approve my protection application together with work right.

    Thank you the Government of Australia.”

39. In respect of question [94], which asks whether the applicant thinks he or she will be harmed or mistreated upon return to his or her home country, the typed answer reads (all errors in the original):

    “Yes I will live in harsh condition, suffered discrimination for Tawainese women.”

40. The first quoted passage contradicts [the applicant’s] claim that she was being pursued for a debt owed to a loan shark as a result of borrowing money to start up a business. The extract records that money was borrowed from relatives because she had been living in harsh conditions and that eventually she could not repay the debt. Furthermore the reference to “suffering discrimination” as “‘Tawainese’[1] women” is self-evidently inapplicable to [the applicant]. It is clear that someone has prepared the application form in a manner that is materially inaccurate, and the content does not reflect the evidence [the applicant] gave. Clearly enough, the unsatisfactory terms of the protection-visa application are a further reason to doubt [the applicant’s] version of events; but, as I say, I have reached my conclusions of fact independently of the application.

    [1] Which I read as a mistyping of “Taiwanese”.

    CONCLUSION IN RESPECT OF THE APPLICATION TO THIS TRIBUNAL

1. Having found that [the applicant] does not, as a matter of fact, fear for her safety or her husband’s or son’s safety because of threats from a loan shark in Vietnam, the claim for a protection visa on this basis must inevitably fail. [The applicant] does not have a fear of persecution or harm on this basis: see the qualifying criteria set out in ss.36(2)(a), 5H, 5J, 36(2)(aa) and 36(2A).

2. The delegate found, as a reason for rejecting [the applicant’s] claim, that adequate protection was offered by the Vietnamese police; but, in my opinion, I need not review that aspect of the matter since I do not accept [the applicant’s] evidence about the loan monies.

3. I should also add that I appreciate that economic circumstances may well be very difficult for this family on their return to Vietnam.  That said, there is no basis for granting a protection visa on the basis of economic hardship or poor employment prospects. 

4. There remains the question of what, if any, danger [the applicant] might reasonably face if she were to return to Vietnam given that she has been out of the country for a long period of time.  It might be inferred, rightly, that she is a failed asylum seeker. The most recent DFAT country information report on Vietnam (13 December 2019) suggests that [the applicant] would not face a real risk of significant harm as a failed asylum seeker on return to Vietnam. The position of failed asylum seekers on return to Vietnam is dealt with specifically at paragraphs [5.24] – [5.35] of the Report in terms which do not suggest that [the applicant] would face a serious risk of persecution or harm. Given this report, there is no basis in my opinion for the grant of a protection visa to [the applicant] as a failed asylum seeker.

5. I am mindful that [the applicant] and her family have lived in Australia for a considerable period of time now and they are keen to continue building a life here.  My task, however, has been to decide whether on the evidence before me, [the applicant’s] claim to a protection visa is justified.

   FORMAL DECISION

6. The decision under review is affirmed.

   Dr N Manetta
   Senior Member