1823036 (Refugee)

1823036 (Refugee) [2024] AATA 4201 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1823036
COUNTRY OF REFERENCE:                   Vietnam
CASE NUMBER:  1834684
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Patrick Francis
DATE:12 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 12 September 2024 at 3:32pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – combined hearing of separate applications by husband and wife – socio-economic conditions and unpaid business loans – threatened by creditors – no approach to police – fear of assault and torture – wife’s additional claim of discrimination and hardship as a woman – paying for daughter’s education rather than repaying loans – return visits – application completed by co-worker without applicants’ knowledge of contents – inconsistent evidence and no documentation about loan – country information – socio-economic conditions faced by population generally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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

These matters are applications for review of decisions made by delegates of the Minister for Home Affairs on 8 August 2018 and 23 November 2018 to refuse to grant the applicants protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Vietnam, are husband and wife. They each made a separate application for protection. The first named applicant applied for the visa on 1 June 2018 and that application was determined on 8 August 2018. The second named applicant applied for protection on 1 June 2018 and that application was determined on 23 November 2018. The applicants had claimed to fear harm arising from debts in Vietnam. Both decision-makers reasoned that the applicants could seek and obtain assistance from law enforcement authorities in Vietnam.
The applicants appeared before the Tribunal on 8 April 2024, 30 April 2024 and 26 August 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Vietnamese and English languages. At the third hearing the applicants’ daughter gave evidence. Both applicants consented to having combined hearings and a combined decision record.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. Determination of that issue requires consideration of whether there is a real chance that the applicants would be persecuted in the reasonably foreseeable future or a real risk that they would suffer significant harm in Vietnam.
Protection visa applications
In his protection visa application, the first named applicant indicated that he left Vietnam on account of poor government system, distrust of the judiciary and law enforcement, destruction of the global economy, poverty and unemployment and on account that he had borrowed money which he could not repay. He indicated that if he returned to Vietnam he would be caught by creditors and could be beaten, injured or killed. He claimed that he had already experienced harm in Vietnam having received verbal threats and also having lived in hardship due to the bad economy. He claimed that he would experience the same socio-economic problems throughout Vietnam and that the authorities could not protect him because it was a socio-economic matter.
In her protection visa application, the second named applicant indicated that she left Vietnam for essentially the same reason set out in the first named applicant’s responses. She made an additional a claim to fear harm from living in harsh conditions on account of suffering discrimination as a woman in Vietnam.
Hearing 8 April 2024
Evidence of the second named applicant
The second named applicant gave evidence that she was born in Vietnam and is a citizen of that country. She has three adult children, one of whom is in Australia with two remaining in Vietnam. Their daughter arrived in Australia in 2017 holding a student visa. One of their adult children in Vietnam is married and the other is studying, living with an aunt.
The second named applicant said that they owned a [business] in Ho Chi Minh for 10 years. The business was successful the first few years but later was not.
The second named applicant gave evidence that she has returned to Vietnam once since her arrival in Australia, they returned last year when her mother was quite sick so they paid her a visit in Vietnam. When asked about any problems incurred in Vietnam in 2023 the second named applicant initially responded that she owed money and whilst working in Australia is trying to return part of the money to the lender. The question was then repeated. The second named applicant responded stating that the creditor, [Mr A] came and asked for the return of the money. He is not a relation. She and her husband had borrowed “a few hundred million Dong” which she estimated to be approximately AU$60,000. That evidence subsequently changed to be such that she claimed to have borrowed 500 million Dong. The loan was to both her and her husband. The purpose of the loan was because they had not done well in the business.
When asked if she could provide more detail, the second named applicant restated that they hadn’t done well in the business and therefore borrowed money to try to run the business. When asked why the business needed that amount of funds, the second named applicant then claimed that was the amount with interest. In subsequent discussion she claimed to have borrowed 500 million Dong in 2017. When the conflict in evidence regarding “a few hundred million” in contrast to 500 million Dong was put to her, the applicant said that at first they borrowed 500 million which equates to approximately AU$33,000-AU$35,000. They needed to pay for rent and stock. The rent was about 30 million Dong per month. The second named applicant did not estimate what amount was necessary for stock but gave evidence that stock purchases were necessary every day.
When asked to provide further detail as to why that amount of funds were necessary, the second named applicant then gave evidence that she had other debts. She claimed that she had borrowed money from two or three other people, small amounts for 150 million and 100 million respectively. In regard to [Mr A] she said that she knew him because he lived nearby and they knew that he had lent money to other people. He was not a relative. The Tribunal referred to the claim set out in the protection visa application concerning monies borrowed from relatives. The second named applicant responded stating that a relative did lend the money at first to help but when they were not successful in their business, they had to borrow money from [Mr A].
When asked if she feared harm in Vietnam for any relatives concerning the debt the second named applicant said that she did. When asked which relative she feared harm from she referred to [Mr A]. The Tribunal noted the second named applicant’s evidence was that he was not a relative and indicated an initial concerned that the applicant was not apparently giving clear evidence or was perhaps evasive. The Tribunal again asked if she owed money to a relative. The second named applicant said that she did, she borrowed money but tried to pay it back and had almost cleared the debt. The biggest debt was the amount owing to [Mr A]. The Tribunal asked who she feared harm from that is a relative. She then stated that she did not have a fear of harm from relatives. The Tribunal indicated the second named applicant’s evidence appeared inconsistent in that she had given evidence that she feared harm from a relative earlier. The second named applicant’s response was that she gets scared “because they will ask for their money”. She did not however provide any further detail regarding loans from relatives or otherwise provide an explanation as to the inconsistencies in her evidence regarding fear of harm from relatives.
In regard to the loan from [Mr A] the second named applicant stated that 500 million Dong was borrowed initially. When asked about the terms of the loan, she indicated that collateral had been given, vehicles and furniture. When asked about the other terms of the loan she stated that it was for one year but since they couldn’t repay, the vehicle and furniture was taken. After those assets were taken they owed 400 million with interest. She said the loan was in writing but she did not have a copy as she had lost it when they left Vietnam. In response to a question as to the interest payable according to the loan, she indicated that 3 million Dong per 100 million lent was payable as interest. She did not make any loan repayments in 2017 or subsequently until she returned to Vietnam in 2023, when she paid 100 million Dong. They own the [business] but could not sell it because they did not own the premises. They did not sell the business as it was not profitable.
The second named applicant told the Tribunal that they obtained the money to travel to Australia from family members to assist her and her husband to work in Australia so they could repay their debt. The Tribunal asked about whether they had considered using those funds to repay the debt to [Mr A]. She responded stating the amount provided by family members was not enough, and that besides that they wanted to work to go overseas and earn money to repay the debt.
The Tribunal asked how her daughter’s study in Australia is funded. In response she said that when her daughter first came to Australia their business was okay. It was about six months after their daughter left when their business didn’t do so well. The Tribunal noted the second named applicant’s evidence was that their daughter had come to Australia in 2017 and that they had to take out a loan in that year because they didn’t have sufficient funds for the business. In response she stated that the business was not doing well about six months after their daughter had left. When asked how their daughter’s study since had been funded she said that they receive financial help from family and friends and they (the applicants) worked to fund their daughter’s study.
The Tribunal asked the second named applicant if she feared harm in Vietnam from [Mr A] on account of the loan. She responded that she did. The Tribunal queried then why they did not send money to him to repay the loan if they feared harm rather than pay for their daughter’s education in Australia. The second named applicant responded that in 2023 they had paid 100 million Dong to him. The Tribunal repeated the question. The applicant said that they promised they would pay him back gradually. The Tribunal queried whether it was consistent that they had sufficient funds to repay the debt but did not do so whilst claiming fear of [Mr A] because of nonrepayment. The second named applicant again referred to repaying 100 million Dong in 2023. She said that they had permission to pay the other loan first. The Tribunal spent some further time in discussion attempting to ensure she understood the point being raised. She stated that she had asked earlier for them to allow repayment of the small debt first, however if they do not pay this year (2024) “they will try to make us pay”.
The Tribunal referred to the second named applicant’s evidence regarding travel in 2023 to Vietnam in the context of the claimed fears of returning to Vietnam. She said that they were fearful because “they” tried to get their money. She said that “we asked them to pay 100 million first then repay the rest later.” When asked what they were concerned about that [Mr A] might do if they didn’t repay the debts, the second named applicant said that “they” would create trouble, argue and ask and force them to pay the money. The Tribunal queried what harm they feared might come to them. She responded stating that they would try to use it every way, including physical assault. They might also bring her to court and try to send her to prison. If she returned they would force her to pay the amount by torture or sending her to court.
The Tribunal asked the second named applicant why she had a fear of being tortured by [Mr A]. The second named applicant referred to having seen a lot of evidence where a borrower failed to pay and lenders force them by torture. She had not seen [Mr A] do this, it was other people (other creditors). Again the Tribunal asked why she feared [Mr A]. The second named applicant said that it was common when a person failed to repay the debt that they would be forced to pay. The Tribunal asked how she knew this about [Mr A]. The second named applicant then gave evidence that in 2023 when they repaid the 100 million Dong [Mr A] asked when they would clear the debt and that if they don’t repay him 100 million he would force them to repay the remaining amount. She said he would physically assault them if they didn’t pay them. The Tribunal noted the second named applicant’s evidence was that there were no repayments between 2017 and 2023 and queried why then if [Mr A] was going to harm them he hadn’t done so in 2023. The second named applicant broadly referred to having made the payment of 100 million Dong. When asked if there was any further evidence she wished give regarding concerns about that loan, she requested further time to stay in Australia.
On the question of whether she could go to police if [Mr A] was to harm them she said that the loan term was for one year so they were worried about going to court for not paying the loan. When asked whether that would amount to significant or serious harm, she said that it would because they promised they would pay and if they went back to Vietnam “they will torture us.” The Tribunal queried why going to court amounted to serious harm. In response the second named applicant said that she feared that they would be physically assaulted and tortured by the lender. The Tribunal again referred to the question of whether court process would constitute significant or serious harm. The second named applicant said that if she was taken to court she would be sent to prison as that was the law in Vietnam. In response to a question, she said that the law applied to everyone.
The Tribunal referred to the second named applicant’s evidence that she had never seen or heard of [Mr A] harming anybody. Her earlier evidence concerned creditors generally. The second named said that [Mr A] had not done anything to her but he had taken these actions against other people and threatened the applicants that if they didn’t pay him back he would do the same thing to them. The Tribunal queried whether that was different to her earlier evidence. In response applicant said that she meant that he hadn’t done anything to her but he has done something to other people.
The Tribunal indicated it had initial concerns regarding second named applicant’s evidence as to the different amounts of claim to have borrowed. She responded stating the amount borrowed was correct and similar to the amount she mentioned earlier.
The Tribunal also raised a preliminary concern that the second named applicant’s evidence regarding other debts owed was only given when she was asked as to why the amount of the loan taken from [Mr A] was necessary to fund the [business]. In response she said that at first she thought it was only [Mr A] she owed but that she had already repaid other people’s debts.
The Tribunal also raised a concern regarding apparent inconsistencies in her evidence as to whether [Mr A] had ever harmed or threatened them. She responded stating that he threatened that if they don’t pay him off this year (2024) he would create pressure on them to repay.
The Tribunal also indicated an initial concern regarding the claimed fear of harm in the context that the applicants could have apparently repaid all of the debt to [Mr A] but chose to pay for their daughter’s education, which might undermine their claim to fear serious harm in Vietnam. She stated that they wanted to clear the small debt first before paying [Mr A]. When asked how much they had paid towards their daughter’s costs of study in Australia in the second named applicant did not provide full details but referred to her current study costs as AU$20,000 per year. The Tribunal noted that it appeared that, on the one hand they claim to fear serious harm or death or torture in Vietnam because of the debt but, on the other hand, they hadn’t repaid the debt they could apparently pay. The second named applicant said: “Yes because we have to pay for our daughter’s study first”. When availed an opportunity to give any further evidence on that point she declined to do so.

In relation to any concerns regarding the economy in Vietnam the second named applicant said that they still owe money and if they go back they have no jobs and no income. The Tribunal noted country information from the Department of Foreign Affairs and Trade Report, Vietnam 2022, which indicated that unemployment was very low, in 2023 at a rate of 2.3%., The applicant responded stating that they don’t have money to start a new business.
The second named applicant’s evidence was that they currently owed [Mr A] 900 million Dong consisting of 500 million in principle and the rest was interest for the last few years. The Tribunal noted that did not appear consistent with the terms of the loan that she had earlier described being 3 million Dong in interest per 100 million Dong loan. The second named applicant initially stated that in their calculations there was 900 million owed so there was 800 million left owing (after the 100 million repayment in 2023). The Tribunal again referred to the apparent inconsistency given the second named applicant’s calculations as to the interest amount owing. She then gave evidence that only for the first year was the interest rate per 100 million. After that the interest increased “and they charged other fees”. She said that she did not owe any money to anyone else, only [Mr A]. The Tribunal queried whether that evidence was consistent with the applicant’s earlier evidence. She responded stating that at the moment she only owes money to [Mr A].
Hearing 30 April 2024
Both applicants appeared at the second hearing. Their daughter was not present to give evidence; the applicants explained that she was busy with an exam. A written statement from the daughter was not provided to the Tribunal as had been suggested at the end of the first hearing. The applicants stated that they had not prepared one.
The second named applicant, when invited to do so, indicated she had no matters to bring to the Tribunal’s attention at that stage.
The second named applicant gave evidence of having arrived in Australia [in] May 2018 holding a tourist visa. She said she had applied for the tourist visa one year prior to arrival in Australia for the purpose of visiting her child who was studying in Australia. When asked whether there was any other reason for the tourist visa application, she stated that they owed money in Vietnam and they wished to come to Australia to work to earn money. At the time of the visa application their intention was tourism and visiting their child. Their travel expenses to Australia were paid in cash in Vietnam with their own money. The Tribunal noted that evidence appeared inconsistent with the evidence at the previous hearing in which she had stated that money was borrowed from family and friends. The second named applicant then gave evidence that she had borrowed money from people to pay for documents prior to travel. She stated that the business in Vietnam was difficult and they borrowed money from people. They spent some of that money to get documents and come to Australia. The Tribunal referred to the applicant’s earlier evidence stating their travel expenses were paid with their own money. In response the applicant asserted that that was not correct, the money was totally borrowed. When asked if she could provide an explanation as to her earlier evidence, that the money for travel was her own money, the applicant repeated that it was not her own money, just borrowed money.
The second named applicant gave evidence regarding their address in Ho Chi Minh City, Vietnam prior to leaving Australia. In response to questions, she explained that the protection visa application form was completed with the assistance of a co-worker. The Tribunal asked the applicant how she satisfied herself that what was written in the application was correct. The applicant repeated that the co-worker completed the protection visa application after she had asked them to help her. She did so because she knew that the co-worker had been granted protection and was able to stay in Australia. The Tribunal asked the applicant how she knew that something false wasn’t written in the protection visa application, in response to which she stated that she had worked for quite a long time with the co-worker and believed that they would do the right job.
The Tribunal noted that at the first hearing the second named applicant gave evidence about taking out a loan from [Mr A] to pay for rent and stock for the [business]. Details provided in the protection visa application form indicated that she was a housewife from 1997 until 2018 and no mention was made of any employment, self-employment or family business. In response the applicant said that in Vietnam she had a small [business] at her residential address. She did not know what was written in the protection visa application form; she and her husband opened a small [business] and both managed it.
The Tribunal also referred to evidence given by the second named applicant at the first hearing to the effect that her [business] was in Ho Chi Minh city. In contrast details provided in her protection visa application indicated that she lived in a particular area of Quang Tri. The second named applicant explained that it was her home town and both of them went Ho Chi Minh City as migrants. She referred to being asked (presumably by the co-worker who assisted her in completing the protection visa application) where her home town was and where she came from. The Tribunal indicated a concern regarding the applicant’s evidence which did not suggest that she took much effort to ensure that the details in her protection visa were correct. When provided an opportunity to respond the applicant declined to do so.
The Tribunal noted the second named applicant’s earlier evidence was that she was threatened with harm by [Mr A] and asked if she had sought protection from the police or the authorities in Vietnam. The second named applicant said she did not do so because she was threatened that if she ever reported the matter to the police that she and her husband would have some measures taken against them. The threat was made by [Mr A] two years earlier. She understood from that that they might employ underworld people or debt collectors to beat her. She did not seek police protection because at that time she still owed money and she hadn’t repaid it. If she had sought police protection they (presumably referring to [Mr A] or his agents) would punish them and beat them (the applicants).
The Tribunal noted its role was to assess whether there was a real risk of serious harm or significant harm to them in Vietnam and also whether effective protection might be available to them from authorities in Vietnam. The Tribunal then read out country information about loan sharks in Vietnam and the willingness of authorities to tackle illegal moneylending.
When provided with the opportunity to comment in response to the country information the second named applicant said that she just wanted to be allowed to stay in Australia so she could work to repay the debt. The Tribunal queried whether it should consider that the involvement by police or other authorities in Vietnam would reduce any risk of harm such that she wouldn’t face serious or significant harm. In response the second named applicant said that she didn’t make a report to police because the gangs threatened that if she did they would come to house and beat or punish her family members. The Tribunal queried whether there was any reason she did not give that evidence at the last hearing when asked about threats. The second named applicant responded that previously she tried to repay some of the money after which they threatened her family. The Tribunal again queried why that was not said at the last hearing if it was a concern. The second named applicant referred to having given evidence about repayment of 100 million Dong. Her mother was unwell in 2023 and she had to return to Vietnam. The debt collector came and threatened her and she had to repay 100 million Dong. The Tribunal queried why the second named applicant did not go to police in 2018. She responded stating that at that time she had just borrowed money for one year only and the interest rate amount was not very big so she didn’t think that they would come and punish her.
The Tribunal referred to claims in the protection visa application indicating concern because of the economy in Vietnam. The Tribunal explained that in refugee matters it needed to consider whether harm was directed at her for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal noted that broad economic issues in Vietnam are matters that impact on all of the Vietnamese population and not just certain groups. The second named applicant confirmed that she had a fear of return to Vietnam because of the economy as she couldn’t do business. Their house and property had been taken away. She was afraid she return to Vietnam as they would have no livelihood and they couldn’t find any jobs and they still owe money.
The Tribunal referred to its role in considering whether complementary protection was owed to the applicants. The Tribunal explained the complementary protection refers to intentional or deliberate acts or omissions by third parties. For that reason, economic conditions would generally not give rise to Australia has protection obligations. In response the second named applicant reiterated that if they return to Vietnam now they still owe money. They want to stay in Australia to repay the money they owe.
In response to questions as to whether she feared harm in Vietnam on the basis of being a woman, the applicant said that there is no discrimination against women. She confirmed that evidence.
The Tribunal raised with the second named applicant a concern regarding her evidence as to the timing of sending her daughter overseas to study in 2017 on the basis that her business was doing well at that stage. Her evidence was that she borrowed money from a relative to help with the business but when the business was not successful she had to borrow money from [Mr A] in 2017. The Tribunal indicated that such timing did not appear consistent and sought the second named applicant’s comment to that concern. She declined to respond.
The Tribunal also indicated a concern regarding the conflicting information in the protection visa application and the information provided at hearing. The second named applicant declined to respond.
The Tribunal also indicated a further concern regarding her claim to fear harm in Vietnam because of the debt, her apparent capacity to repay that debt but that she made an apparent choice to pay her daughter’s school for use. In response the second named applicant said that she had to work to pay the school fees and expenses. She had promised the lender that every year she would repay some of the loan. The Tribunal queried whether it should consider that her choice to pay her daughter’s school fees in such circumstances indicated she did not fear harm in Vietnam on account of any money she owed. In response the second named applicant said that she was scared of harm in Vietnam. Their child was studying in Australia and she has to pay the school fees. She also has to repay the debt. The Tribunal noted the second named applicant’s evidence was she didn’t make any repayments for five years. She responded stating that in the previous year she had repaid a small debt amount first.
The Tribunal noted it had concerns regarding the reliability of her evidence generally to which the applicant declined to respond.
When provided an opportunity to give any further evidence, the second named applicant reiterated her desire to be allowed to stay in Australia and work to repay the debt.
Evidence from the first named applicant
At the outset the Tribunal noted that the first named applicant had heard his wife’s evidence and answers to questions as well as the concerns at times expressed by the Tribunal. When asked if he wished to make any comments about his wife’s evidence, the first named applicant declined to do so.
The first named applicant gave evidence that he was born in a particular area of Quang Tri, Vietnam and that he is a citizen of that country. He described earlier work as [an occupation], moving to Ho Chi Minh City where he worked for one year before commencing the [business]. They borrowed money from family and friends to expand the [business]. The Tribunal referred to the first named applicant’s protection visa application indicating that from 1992 until 2017 he worked in [his first occupation] in Quang Tri.
The first named applicant explained that when he first arrived in Australia he had a co-worker who had been successful in a protection visa application. He has little education so asked the co-worker to assist him. The first named applicant said he did not know the contents of the protection visa application. The Tribunal asked if he took any efforts to understand what was written in the protection visa application. The first named applicant responded that he told them that in 2017 there was a fight in his business which is not good and that’s why they had to come to Australia to work to repay the debts. The Tribunal asked the first named applicant how he knew whether the co-worker had written what he told him. The first named applicant husband repeated he didn’t know the contents but the co-worker was successful in applying for a protection visa application. The Tribunal queried whether it should consider that the first named applicant had not taken much effort to ensure what was written was correct. In response the first named applicant said that he told the co-worker to write the truth and don’t write anything related to the law or legal matters.
The first named applicant gave evidence that he arrived in Australia in March 2018. His daughter had arrived in Australia in 2017 with the intention of studying. She had recently transferred to a different course of education. When asked who funded the cost of their daughter study in Australia the applicant husband said that they both worked to pay for her school fees. In response to a specific question as to whether anyone else funded the daughter’s education the applicant husband stated “no”. The Tribunal referred to evidence given by the first named applicant’s wife at the previous hearing that they had had help from family and friends to fund their daughter study. The Tribunal noted such evidence was different to the evidence given by the first named applicant. In response he said that when they sent their daughter to Australia they still had some money. His wife borrowed money from family and friends. The Tribunal noted the apparent conflict with the first named applicant’s evidence given just earlier when he had said no one else funded her education. The first named applicant said that his evidence was that both of them paid for school fees. His wife told him that she had borrowed money from family and friends but it was ultimately they (husband-and-wife) who funded the education. The Tribunal referred to the specific evidence that they had funded the education through their hard work to pay for the school fees. The first named applicant did not answer the question directly rather referring to having arrived in Australia noticing that there was a better life and living conditions. A co-worker had assisted them with their application. They worked hard to pay the school fees which were $36,000 per year.
The first named applicant said that he had returned to Vietnam since arrival in Australia. In March 2023 he had travelled because his mother had a severe sickness. He also travelled in April 2024 to Quang Tri, Vietnam as his mother was dying. He returned to Australia two days prior to the hearing. When asked if he faced any harm or threats in Vietnam in 2023 or 2024 the first named applicant said that in 2023 his wife paid 100 million to [Mr A] and this time in 2024 they told him that his mother had a serious sickness but repaid a further 50 million to [Mr A] in 2024. The Tribunal repeated the question as to whether they faced any harm or threats in Vietnam on those occasions. The first named applicant responded “No”.
The Tribunal asked the first named applicant if he wished to comment on the evidence by his wife that there were threats by [Mr A] regarding the loan. The first named applicant said that after his wife borrowed the money they were able to repay for two or three months; they went to Australia to work to earn the money, the school fees are expensive are they just had enough to pay for their daughter’s fees and living costs. They will only be able to repay the debt after their daughter has graduated. They wish to stay in Australia to earn money to repay the debt.
The Tribunal noted that, from its understanding of the evidence, the first named applicant claimed to fear harm in Vietnam because of the loan owed, yet at the same time he appeared to have the capacity to repay the loan but chose not to and had decided to pay for his daughter’s study fees in Australia instead. The Tribunal queried whether it should consider that such a decision indicated he did not fear harm in Vietnam. The first named applicant husband did not respond directly to that question. Rather, he repeated that they earn money in Australia to pay for their child’s education and living costs. They expect her to complete the course in one and a half years. If they return now to Vietnam they will have no jobs, they could not repay the debt and would be harmed or beaten. The Tribunal suggested that from the evidence before it they could have repaid the debt years earlier. They claimed to fear harm in Vietnam but chose not to repay the debt and remove the associated risk. The Tribunal indicated that in such circumstances it was possible that the Tribunal might form the view from that evidence that there was no risk of harm in Vietnam as there was no loan. The first named applicant stated that the debt was 800 million, they had repaid 50 million and now the current debt was 750 million. The Tribunal suggested the first named applicant had not answered the question. The applicant indicated he understood the question. The Tribunal then asked again why he had not chosen to repay the debt. The first named applicant said that they have to prioritise their daughter’s education for which they pay $36,000 per year in school fees in addition to her living expenses. They wish to have a further two or three years in Australia in order to work, repay the debts and return to Vietnam.
The first named applicant gave evidence that the loan from [Mr A] was because of a problem with their business in late 2017 so he had to borrow the money from [Mr A]. About 100 million was for the costs of their own travel documents and application to go to Australia. The Tribunal queried why they would send their daughter to Australia if they were having problems with their business. The first named applicant said that it was the daughter’s dream to study in Australia. Earlier the business was good but after that there were problems. When his daughter went to Australia they still had some money at home and his wife borrowed money from family members to help her go to Australia. He and his wife borrowed money from [Mr A] in late 2017 or 2018 after their daughter went to Australia. At the time business was not so good. They initially borrowed 500 million but now that it is more than 800 or 900 million.
In response to a question as to whether he had ever been threatened or harmed on account of the loan from [Mr A], the first named applicant said “not yet”. The Tribunal asked if he knew of any threats to his wife because of the loan. Initially the first named applicant said that his wife had told him that if they borrowed money from the loan sharks and didn’t repay it, they would get into trouble. They were warned not to go to the police or they would be harmed. He repeated his evidence concerning having initially borrowed money and having made more recent repayments. The first named applicant then stated that the current amount owing was 750 million. The Tribunal queried whether it should consider the first named applicant was being evasive and not answering the question and just repeating his earlier evidence. The first named applicant said that he had told the true amount of the debt owed. The Tribunal noted that was not the question asked of him and restated the question as to whether he knew of any threats to his wife. The Tribunal noted that the first named applicant had not answered that question. In response he said that there was no threat but if they do not pay back the money “they will harm us”. When asked why he stated that the applicant husband said that it was because they owe the debt, if it is not repaid they will be assaulted which they said to his wife when she borrowed the money. The Tribunal noted the effect of the evidence was that they did not make payments for five years and were not assaulted even after they had contact with the creditor. The first named applicant repeated his earlier evidence regarding the 500 million dong borrowed and referred to a discussion with the creditors about how working conditions in Australia were difficult and challenging. They promised to repay the creditors but requested to do so gradually. The Tribunal queried whether it should consider that, if no repayments were made for five years and no harm was suffered in Vietnam on their visits, they might not face harm in the future. In response the first named applicant said that [Mr A] lived near the [business] and knew their daughter went to Australia. He knew the costs were high in Australia and that’s why they asked for more time to repay the debt gradually.

The Tribunal asked the first named applicant husband what he feared if he returned to Vietnam. In response he said if they return now they would have nothing. He could not find a job and if he could not repay the debt they would be assaulted, attacked or beaten.
At hearing the Tribunal referred to information before it that the unemployment rate in Vietnam in the second quarter of 2023 was recorded at 2.3%, the number of people claiming unemployment benefits was down significantly in 2023 and that the average income for workers increased by 6.9% in 2023. The first named applicant responded that he can’t comment on government statistics but he knows from his personal circumstances that he could not find a job or open a business. He repeated the request to remain in Australia in order be able to earn money and repay the debt.
The first named applicant stated that if they were unable to repay the debt it was inevitable that they would be harmed. When asked if he could provide more detail about those concerns, he said that if he returned he would have no job and no way to repay the debt. They still owe 750 million dong which was a huge amount and they will harm him; they may come and beat them. The Tribunal asked the first named applicant about whether he could make a police report in such circumstances. He responded stating that they needed the money and they had promised to repay the debt and they had already been told about the consequence if they did not repay the debt. The underworld figures are happy when you borrow the money but if you are unable to repay “they will become cruel and nasty”. In the context of that evidence the Tribunal again referred to the apparent choice not to repay the debt when they had the opportunity to do so. In response the first named applicant said that they do not have the capacity to repay the debt because they have to pay for their daughter’s education. He reiterated that they wish to stay in Australia and save to repay the debt.
The Tribunal noted it was required to consider whether there are effective protection measures available in Vietnam. The Tribunal read to the applicant country information , Vietnam concerning efforts by the Ministry of Public Security and police in Vietnam to crackdown on loan shark gangs including through numerous arrests and prosecutions. The Tribunal queried whether it should consider from this information that the involvement of the police relevant authorities in Vietnam would reduce the level of risk of serious harm or significant harm. In response the first named applicant said that Vietnamese authorities usually announce their performance but there are many instances where they cannot catch criminals, or they might even provide support or backing to criminals.
The Tribunal referred to claims in the protection visa application indicating concerns because of the economy in Vietnam. The Tribunal explained that in refugee matters it needed to consider whether harm was directed at him for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal noted that broad economic issues in Vietnam are matters that impact all of the Vietnamese population and not just certain groups. The first name applicant declined to respond when invited to do so.
The Tribunal referred to its role in considering whether complementary protection was owed to the applicants. The Tribunal explained the complementary protection refers to intentional or deliberate acts or omissions by third parties. For that reason, generally speaking, economic conditions would not give rise to Australia’s protection obligations. In response the first named applicant repeated that they hope to be allowed to stay in Australia for another two or three years that they can repay the debt.
At the end of the second hearing the Tribunal noted that there may be a need for a further hearing.
Hearing 26 August 2024
The applicants’ daughter attended the third hearing to give evidence in support of her parents’ applications. She said that she didn’t understand much about the protection visa. Her parents have debts in Vietnam and they hope to support her to finish her study and then they will be able to repay their debts. She initially came to Australia to study and the debts happened not long after she arrived. She expressed that she didn’t believe her parents’ debt problem would lead to murder but it might lead to conflict or violence. If she returns to Vietnam she would not be able to continue studies however, if her parents are allowed to stay they could repay their debts. Her knowledge of her parent’s situation comes from what the parents of told her as well as other family members who said that people are still looking for her parents in Vietnam. They asked her brothers about a plan to repay the money and didn’t just wait in silence.
Both applicants were provided an opportunity of commenting on their daughter’s evidence. The first named applicant initially indicated he had no comment. The Tribunal referred to the evidence given by his daughter to the effect that there were people looking for them in Vietnam. It was noted that such evidence appeared different to his own evidence which was that there were negotiations with [Mr A]. The first named applicant asserted that there were negotiations with [Mr A] as he had mentioned at the earlier hearings. They repaid 100 million dong and [Mr A] told them to return to Australia in order to repay the money. He explained that [Mr A] wasn’t technically looking for them but had followed up with their two sons about when the money would be repaid.
The second named applicant indicated she agreed with her daughter’s evidence. She added that recently [Mr A] asked their sons about when they (the applicants) would repay the money. They are worried about their daughter’s study and repaying the debts.
At hearing the Tribunal explained to the applicants that they would be provided an opportunity of commenting or responding to particular evidence given by the other at the previous hearings. It was explained the Tribunal would provide details of the information and explain why such information would be the reason or part of the reason for affirming the decision under review, subject to the applicant’s comments or responses. It was further explained that if the applicant did not understand the information or its relevance to raise that matter and further, that they were entitled to request further time before commenting or responding.
Matters raised with the first named applicant
The Tribunal referred to evidence given by the second named applicant at hearing such that they had both borrowed a few hundred million dong from [Mr A]. She had subsequently claimed however that the amount borrowed was 500 million dong and that they currently owe him around 900 million dong with interest. She had initially said that the interest was calculated as being 3 million dong per 100 million dong loaned but later claimed that there were subsequent changes to the interest and other fees. The Tribunal explained that such evidence may be considered inconsistent and would therefore tend to undermine the credibility of the claims if relied upon. The applicant indicated he understood the information and chose to respond. He said that when they came to Australia they borrowed 500 million dong plus interest and the whole sum is calculated to be 900 million. They had repaid 100 million and still oh 800 million dong.
The Tribunal referred to evidence given by the second named applicant to the effect that both applicants had sent their daughter overseas to study in 2017 on the basis that the business was doing well at that stage. However she had also claimed that the business was not successful so that they had to borrow money from [Mr A] in 2017. The Tribunal explained that that information could be considered inconsistent it could tend undermine the credibility of the claims on this issue and more generally. The first named applicant chose to respond stating that in 2017 when their daughter went abroad the family business was doing well. After that there were difficulties in the business. In November they couldn’t pay their daughter’s tuition fees and that’s why his wife borrowed money from [Mr A]. They had to pay rent as well which pretty much used up all of the money.
The Tribunal referred to evidence given by the second named applicant at hearing that there were threats made by [Mr A] about the loan in Vietnam. In contrast the first named applicant’s evidence was that there were no threats. The Tribunal explained that the information was relevant as it indicated inconsistency between the claims and evidence and could tend undermine the reliability of those claims. In response the applicant said that he told all he knew about [Mr A] wanting his money back.
The Tribunal referred to evidence given by the second named applicant that, on the one hand, there was a debt or debts owing to relatives in Vietnam and she fears those relatives. However she later said that she did not fear those relatives. The Tribunal explained that the evidence was relevant as it could tend undermine the claims of fearing harm from creditors including both relatives and from [Mr A]. It could also lead the Tribunal to consider that such evidence was not credible and could impact on the assessment of credibility generally. The first named applicant chose to respond stating that money from relatives was already paid back that he had no further comment.
The Tribunal referred to evidence given by the second named applicant about payment of their daughter’s school fees in Australia in the choice to pay those fees rather than than repay the loan to [Mr A]. Those study costs were referred to as between AU$20,000 and AU$36,000 per year. The evidence was relevant because they had claim to fear serious harm in Vietnam including assault and torture by the creditor. The Tribunal explained that it may be it could consider such a choice undermined the claim to fear harm in Vietnam. In response the first named applicant said that her daughter’s school fees were initially $30,000 per year however that subsequently changed to being over $20,000 per year. In order to support her they plan to work hard so that she can have a better future.
The Tribunal referred to evidence given by the second named applicant that, on the one hand, the first and second named applicant’s travel expenses to Australia were paid in cash in Vietnam with their own money. On the other hand she had also said that they had borrowed money from family and friends for their travel. She subsequently had said that the money for their travels to Australia was totally borrowed. It was explained that information was relevant as, if relied on, would show inconsistencies regarding their claims and could undermine the credibility of that claim and their evidence more generally. The first named applicant declined to comment on that information.
The Tribunal referred to evidence given by the second named applicant that there were no repayments of the loan between 2017 and 2023. It explained the information was relevant because if relied on it could be that the Tribunal considered that as there had been no harm to the applicants in that time without repaying the loan that there would likely be harm in the future. The first named applicant said that they had paid back 200 million dong earlier and then 100 million dong. They still owe 800 million dong.
The Tribunal referred to evidence given by the second named applicant that she had never seen [Mr A] harm anybody because of a loan. When asked at hearing why she feared him she referred to general knowledge that when a person fails to repay the debt they would be forced to repay. The first named applicant had however given evidence at the second hearing that one or either of the applicants was threatened by gangs and that is why she did not make a report to police. The Tribunal noted that there had been no previous mention of any threats by gangs despite considerable discussion around the role of the creditor and any threats received from him. The Tribunal noted that the first named applicant’s own evidence was that there had not been any such threats. It was explained the relevance of that information is that it could be considered to be introduced later in the hearing and inconsistent with the second named applicant’s earlier evidence, as well as the first named applicant’s evidence. If relied on that information could tend undermine the credibility of that claim and the claims generally on the application. The second named applicant responded stating that his wife had not seen [Mr A] harm people however if they owed money and did not repay the applicants might be hurt. He said that [Mr A] has never threatened him but he does not know what his wife was told when she borrowed the money. The Tribunal queried whether if his wife had been threatened she would have told him. The first named applicant had said that his wife told him that [Mr A] said that if they don’t repay the money it would not end well.
The Tribunal referred to evidence given by the second named applicant towards the end of her evidence that family members had been threatened. The Tribunal noted that she had not earlier made a claim about that despite discussions around threats from the creditor. It was explained that the failure to raise that assertion earlier could tend undermine the credibility of the claim the claims generally. The first named applicant declined to comment to that information.
The Tribunal referred to evidence given by the second named applicant to the effect that their daughter’s study costs have been funded through their own work as well as from financial help from family and friends. The first named applicant’s evidence initially however was that no one else funded their daughter’s education. It was only when the apparent conflict in evidence was raised at hearing had he given different evidence. That further evidence was that although his wife had borrowed money from family and friends it was ultimately he and his wife had funded the education of their daughter. It was explained that the information was relevant as it would tend to show an inconsistency at least initially the evidence given. It was explained that if relied on such information could tend undermine the credibility of that assertion and their evidence more generally. In response the first named applicant said that they had to borrow money from family for their daughter’s fees. By saying that they had paid it themselves they meant from their own pockets and from money borrowed from their family.
The first named applicant was provided with an opportunity to give further evidence and he indicated there was nothing else he wished to say.
Matters raised with second named applicant
The second named applicant was provided an opportunity of commenting on any evidence he had just heard from her husband and declined that opportunity.
The Tribunal referred to evidence given by the first named applicant consistent with her own evidence to the effect that they chose to pay for their daughter’s fees and expenses in Australia rather than repay the loan. The Tribunal explained that the information was relevant because it could tend undermine the claims that they feared harm in Vietnam. If they had the capacity to repay the loan it could be considered that they would have done so rather than face the torture and harm they claimed to fear. The second named applicant chose to respond stating that in 2023 people came to collect the money and she promised that she would work in Australia to repay them.
The Tribunal referred to evidence given by the first named applicant that no one else had funded their daughter’s education in Australia. It was only when an apparent conflict between the first named applicant’s evidence in the second named applicant’s evidence that hearing was raised did he change that evidence. He subsequently stated that the second named applicant had told him that she had borrowed money from family and friends but it was ultimately both parents who funded the education. It was explained that the evidence was relevant because if relied on the Tribunal could find that there is an inconsistency between any evidence given by the applicants and could undermine the reliability of this claim or the claims more generally. The second named applicant stated in response that when they decided to send the daughter oversees the business was okay. They had savings and borrowed money from family to help her study overseas. One or two months after she started study the business went downwards and that’s why they had to borrow money from [Mr A].
The Tribunal referred to evidence given by the first named applicant about payment of their daughter’s school fees in Australia and the choice to pay those fees rather than repay the loan to [Mr A]. References had been made in evidence to study costs being between AU$20,000 and AU$36,000 per year. The Tribunal explained that the evidence was relevant because they claim to fear serious harm in Vietnam including assault and torture but that the choice to pay such fees may be considered to undermine the claims to fear harm in Vietnam. The second named applicant responded stating that when she visited Vietnam in 2023 he ([Mr A]) came to ask for the money. They paid 100 million and said that they will continue working and paying him more.
The Tribunal referred to evidence given by the first named applicant regarding their return trips to Vietnam since their arrival in Australia. It explained that the information was relevant because it could tend undermine their claims that they feared harm in Vietnam. In response the second named applicant said that her mother was severely sick. When they are in Vietnam they had to make promises to continue paying. They had returned twice to Vietnam since 2018 (in February 2023 and in April 2024). When they were there they kept quiet so people didn’t find out.
The Tribunal referred evidence given by the first named applicant that he had not faced harm or threats in Vietnam because of the loan. The evidence however given by the second named applicant was that she had faced such threats. The Tribunal explained that the information was relevant because it indicated a conflict in their evidence and if relied on could tend undermine the reliability of their evidence. The second named applicant responded stating it was her own decision to borrow money and she didn’t tell her husband. She went by herself and [Mr A] told her that if they don’t pay him back next time he will use “harsher methods”.
At the end of the third hearing both applicants were provided with an additional opportunity to give further evidence. Each referred to a desire to stay in Australia to assist their daughter to finish her studies.
CONSIDERATION
The applicants claim to be citizens of Vietnam. Copies of their Vietnamese passports are retained on the respective departmental files. The Tribunal accepts and finds that the applicants are citizens of Vietnam, which is the country of reference against which their claims are assessed as the country of nationality and the ‘receiving country’ per s.5(1) of the Act.
Summary of claims
The applicant’s claim to fear harm in Vietnam on account of an unpaid loan from a moneylender in Vietnam, [Mr A]. They claim that their [business] in Vietnam was doing well and that they funded their daughter’s travel to Australia for the purposes of undertaking studies in 2017. They claim to have subsequently obtained a loan from [Mr A] after a downturn in their business. Other monies were borrowed from family members. Their travel to Australia was stated to be for the purpose of working, earning money and repaying the debt to [Mr A], as well as funding their daughter’s study and living expenses in Australia. The applicants claim that they still owe [Mr A] a significant amount of money, having made some repayments in 2023 and 2024 on their return visits to Vietnam. The applicants seek to remain in Australia in order to continue to pay their daughter’s educational expenses (approximating $36,000 per year) and also to then save funds to repay the debt to [Mr A] after their daughter has finished her studies. The second named applicant made reference at hearing to obtaining loans from family members and claimed to fear harm on account of an unpaid debt to those relatives. The applicants further claim that they would be unable to obtain employment in Vietnam because of economic conditions in that country.

The second named applicant’s protection visa application includes a claim to fear harm by living in harsh conditions in Vietnam on account of suffering discrimination as a woman. When this matter was raised with her at hearing, she stated that there was no discrimination against women and confirmed that evidence. She had earlier given evidence regarding completion of the protection visa application form with the assistance of a co-worker. In view of the evidence the Tribunal considers and finds that the applicant has resiled from that claim.
Both applicants indicated no knowledge of the claims in their protection visa application. Essentially the only claims pursued at hearing concerned an unpaid loan and difficult socio-economic conditions in Vietnam. Other broad claims contained in the protection visa application were not pursued.
In respect of those broad further claims, and in relation to claims of unemployment, the Tribunal finds such economic or political issues impact or apply to the entirety of the Vietnamese population, not just certain groups. The Tribunal further finds that the political or economic harm feared by the applicants is not for the essential and significant reasons of their race, religion, nationality, membership of a particular social group or political opinion. Therefore they do not meet the criteria set out in S.5J(1)(a).
The Tribunal has also considered whether the applicants meet the complementary protection criteria on the basis of the political and economic reasons referred to in the protection visa applications. In doing so the Tribunal must consider whether 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 or either of them will suffer significant harm. The term ‘significant harm’ as defined in s.36(2A).
No claim is made that the applicants’ circumstances are outside those of the Vietnamese population generally and that either face personal risks. Nor do either assert that there have been a would be intentional or deliberate acts or omissions by third parties which would adversely impact them. Nor do they claim that the harm feared on the above basis would arise from any act or omission so as to constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment, punishment, torture or the death penalty.
On the basis of the evidence before it the Tribunal finds that the risk of harm arising to the applicants on account of poor government system, distrust of the judiciary and law enforcement, destruction of the global economy, poverty and unemployment are faced by the population of the country generally and not faced by either of the applicants personally. As such the Tribunal finds that there is taken not to be a real risk that the applicants will suffer significant harm on that basis in Vietnam per s36(2B)(c). The Tribunal is not satisfied that any harm arising from such circumstances in Vietnam meets the definition of significant harm as that term is defined in s.36(2A).
Claimed loans
The Tribunal has significant concerns regarding the reliability and credibility of evidence in these reviews.
The first named applicant arrived in Australia [in] March 2018 and the second named applicant arrived [in] May 2018, as set out in their respective protection visa applications. The Tribunal accepts that information as accurate and finds accordingly. The Tribunal accepts the applicants’ evidence that their daughter arrived in Australia in 2017 to undertake study. They claim that, at the time of sending their daughter to Australia, their [business] was doing well, however some six months after their daughter came to Australia the business declined. They claim to have initially borrowed money from (unnamed) relative/s to help with the business. Further that, when the business was not successful, they borrowed 500 million dong from [Mr A] in 2017. They claim that the loan was documented in writing but that they have subsequently lost loan documentation. The evidence was that the loan was for one year only and that vehicles and furniture were provided as collateral. That collateral was forfeited when they could not repay the loan and that after the forfeiture, they owed 400 million dong with interest. They claim that the interest payable on the loan was calculated at 3 million dong per hundred million dong lent. The applicants gave varying evidence as to how much remains owing to [Mr A], from 750 million dong to more than 900 million dong. As was discussed at hearing, the Tribunal has concerns regarding the claimed total amount now owing in contrast to the evidence about interest rate calculations. The Tribunal does not accept that, in accordance with such interest rate, the total debt would have accumulated to more than 750 million dong. When that concern was raised at hearing, broad reference was made to changes to fees and interest however, in the Tribunal’s view, insufficient detail was provided account for such a substantial difference. The Tribunal has considerable concern as to the reliability of the evidence in this regard.
The applicants’ claim that they borrowed money from [Mr A] in November 2017 having already borrowed money from family members earlier in 2017 to support their failing business. Both also gave evidence that they sent their daughter overseas to study in 2017 as their business was doing well at that stage. They claim that the business started failing after sending their daughter to Australia. In the Tribunal’s view the applicants’ explanation as to why 500 million dong loan was required to support the business was simply inadequate, given reference to an earlier line that year from relatives to support the business. The second named applicant, when provided opportunities to give further evidence, made reference to rent and stock costs. The Tribunal takes into account the claim regarding rental costs of 30 million dong per month, however the Tribunal further takes into account their claim that the loan was taken out late in 2017 and their arrival in Australia in May 2018. The Tribunal does not accept that such amount was necessary to fund a small [business] run from their residential address. Whilst of itself, that could be seen as a minor consideration, it stands in addition to the other matters discussed in these Reasons.
The Tribunal also holds significant concerns regarding evidence of the timing of the business’ downturn and the subsequent need for a loan. The applicant’s assert that they borrowed funds from family members to assist with the failing business prior to approaching [Mr A]. Consistent with that evidence, such loans from family members would have been made earlier in 2017, although the applicants gave no clear details as to timing and amounts of any loans from family members. That stands in contrast to the claims that their business was doing well at the time they sent their daughter to study in Australia earlier in 2017. The Tribunal does not accept from the explanations provided that there was a downturn in their business as claimed, nor an apparent need for such a loan in the circumstances claimed.

100. The above concerns are furthered when taking into account other significant unresolved inconsistencies and contradictions in the applicants’ evidence. As was raised with both applicants at hearing, their evidence differed on the question of whether they had faced any harm or threats in Vietnam because of the purported loan from [Mr A]. The first named applicant gave evidence that there were no threats from that creditor or that he knew of none. The second named applicant gave evidence that she had faced such threats. The first named applicant indicated no knowledge of any threats. It was only when the difference in evidence was raised, did the second named applicant assert that she had not told her husband about those threats. The Tribunal has taken into account that it is the claimed fear from that creditor which is the essential basis of this application for protection. In the context of the claims the Tribunal does not accept that for some reason the second named applicant decided not to tell the first named applicant of the threats. The Tribunal does not accept it to be credible. In reaching this conclusion the Tribunal has also taken into account the ongoing changes to evidence concerning any threats. The Tribunal finds that the inconsistencies on this point add to the various other concerns regarding the reliability of the evidence before it.
101. As set out at paragraph 18 of these Reasons, the Tribunal spoke with the second named applicant regarding any fears from relatives in Vietnam concerning a debt. She initially claimed she feared harm from relatives but subsequently stated that she did not have such a fear. When asked initially which relative she feared harm from, she referred to [Mr A], however, the second named applicant had given earlier clear evidence that [Mr A] was not a relative. When provided an opportunity to address those inconsistencies, the second named applicant did not do so directly other than to assert that the loan from relatives was already repaid (as discussed of paragraph 73). The Tribunal does not consider that there was any confusion by the second named applicant as to the questions asked of her. The Tribunal finds that the inconsistency or contradiction remained unresolved. The Tribunal further finds such evidence indicates a willingness by the second named applicant to contrive evidence.
102. Additional concerns arise regarding evidence from the applicants about how their initial travel expenses to Australia were paid. The second named applicant gave initial evidence that such expenses were paid with money borrowed from family and friends. She contradicted that evidence at the second hearing asserting that it was with their own money. When the contradiction was raised with her the second named applicant essentially reasserted that it was borrowed money however she made no attempt, in the Tribunal’s view are providing any explanation as to those contradictions. When provided an opportunity to respond or comment to that apparent inconsistency, the first named applicant declined to comment. In the Tribunal’s view such an unresolved inconsistency demonstrates an apparent willingness to contrive evidence for the purpose of furthering the protection visa claims. The Tribunal finds accordingly.
103. The Tribunal also considers that the first named applicant was willing to contrive evidence for the purpose of furthering the protection visa application. For example, he initially gave evidence that both he and his wife worked to pay for their daughter’s school fees in Australia. He specifically responded “No” to the question as to whether anyone else had done so. Only when raised with him at hearing, that there was a contradiction in evidence from the second named applicant concerning having received help from family and friends to fund their daughter’s study, did his evidence change. He subsequently gave evidence that his wife borrowed money from family and friends. He did not respond directly to the apparent contradiction when provided an opportunity to do so. In the context of its concerns and no other apparent explanation, the Tribunal finds this is an example of the first named applicant’s willingness to contrive evidence.
104. Despite their claims to fear harm in Vietnam both applicants have returned to that country twice in the last two years. That was their evidence, which the Tribunal accepts and finds accordingly. Such travel was made in the context that the applicants have, since 2018, been claiming a fear to return to Vietnam on account of outstanding loan/s. Whilst acknowledging the stated reasons for their return the Tribunal finds that their travel to Vietnam is inconsistent with their claimed fears.
105. The Tribunal does not accept the initial assertion that the applicants kept quiet on their return trips to Vietnam so people ([Mr A]) didn’t find out. Indeed, that initial assertion was subsequently contradicted when both applicants gave evidence that there were active negotiations made either with [Mr A] or those acting on his behalf on the visits in 2023 and 2024. The Tribunal finds that the that the initial evidence, that they kept quiet so people didn’t find out when they travelled to Vietnam in 2023 and 2024, is not credible in the context of the subsequent assertion that there was contact with the creditor. The Tribunal considers this to be a further example in which the applicants were willing to contrive evidence in support of their claims.
106. The applicants gave evidence regarding payment of school fees amounting to between $20,000 and $36,000 per year. Their consistent evidence, at least in respect of the last number of years, has been such fees were paid from their own money obtained through employment in Australia. As was discussed with each of the applicants, they claim to fear serious harm in Vietnam, including assault and torture, because of the outstanding claimed loan; they ostensibly have had the capacity to repay that loan but have chosen not to do so. When afforded an opportunity to respond to that concern each simply reiterated their desire to ensure their daughter can continue and complete her studies in Australia. Their evidence in relation to such choice, in the Tribunal’s view, seriously undermines the credibility of their claims to hold such fears. On the basis of their evidence the Tribunal finds that the applicants have chosen to pay their daughter’s school fees in Australia rather than repay the claimed loan to [Mr A]. The Tribunal further finds that such choice is inconsistent with their claimed fears of harm in Vietnam.
Summary and conclusion findings on claims related to the loans
107. In view of the considerable concerns and findings set out above, the Tribunal does not accept that the applicants took out loans from family members or from [Mr A] as claimed. It follows, and the Tribunal finds, that there is no real risk of serious harm or significant harm in Vietnam on account of any such claims.
108. Nor on the evidence is there any other claim which has been accepted.
109. On the basis of the evidence before it the Tribunal does not accept that there is a real risk of serious harm or significant harm to the applicants in the reasonably foreseeable future arising from debts owed to relatives.
110. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that either of the applicants satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION

113. The Tribunal affirms the decisions not to grant the applicants protection visas.
Patrick Francis
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.
…

[2024] AATA 4201

12 September 2024

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Immigration

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