1824279 (Refugee)

[2024] AATA 2491

1824279 (Refugee) [2024] AATA 2491 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Ngo Tung Bao (MARN: 0006620)

CASE NUMBER:  1824279

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Bryn Butler

DATE:14 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2024 at 4:57pm

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – money lenders who threatened to pay gangs to harm him – fear of harm based on his previous job in Vietnam and political views – loan sharks – applicant was not of adverse interest to the Vietnamese authorities – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [age]-year old man and a citizen of Vietnam. He arrived in Australia on [date] July 2008 as the holder of a Student (Subclass 573) visa, which ceased on 30 August 2011. He said that he was granted the Student visa as a dependent of his then wife who was the primary Student visa holder. He applied for the protection visa on 23 October 2017.

3. In his visa application, the applicant set out his claims for protection, which are summarised as follows:

   ·He left Vietnam because the organisation where he worked mistreated him on the basis of his political view. After he arrived in Australia, he was suspected of joining overseas forces to betray his country.

   ·Before leaving Vietnam, he had borrowed a large amount of money from people with a high interest rate. He has not been able to repay them, and the lenders have threatened him.

   ·If he returns to Vietnam, he will face two dangerous messes: the authorities where he was working, namely [Workplace 2]; and the money lenders who threatened to pay gangs to harm him. He has been informed by his relatives in Vietnam about this information and believes that he will be mistreated by the authorities of his hometown.

   ·He would not be able to relocate to another part of Vietnam because he would require permission of local authorities, and would not be able to register his name in the family registration book of the new place.

4. The delegate refused to grant the visa on 9 August 2018 because they were not satisfied that the applicant had a particular profile that would attract the adverse attention of the Vietnamese authorities, and found that he did not engage Australia’s protection obligations.

5. The applicant appeared before me on 28 March 2024 and 4 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion. For the following reasons, I have concluded that the decision under review should be affirmed.

    Applicant’s background

14. The applicant is from [a] Province, Vietnam. He has five siblings in Vietnam, three brothers and two sisters.

15. The applicant studied a Bachelor Degree in [Field 1]. At the second hearing, he provided copies of his educational qualifications to the Tribunal, and I accept that he obtained [Qualification 1] in 1995 and [Qualification 2] in 2004.

16. The applicant said he was employed at [Workplace 1] from 1995, where he worked for 10 years. In his role at [Workplace 1], he [worked in Field 1].

17. After 10 years in his role in [Workplace 1], he went to work in the [Workplace 2], where he was responsible for arranging and placing personnel in managerial and director roles. He said that the role was a human resources type role, and stressed that he was placing people in senior level roles. I asked the applicant why he had decided to change roles and leave [Workplace 1]. He said that his father-in-law [worked] in the organisation, and a lot of his friends were also working in the same agencies, so he thought there would be more opportunities for him there. He worked in his role until he came to Australia in 2008. At the second Tribunal hearing, he provided a document stating that ‘receive assignment at the [Personnel Division] and I accept that he worked in this role. He also provided a copy of his [Qualification 3] which he studied from 2007 to 2008 and I accept that he studied this course.

18. The applicant married in 2000 and divorced his wife in 2013 (after he came to Australia). He has two sons with his ex-wife, who are now aged [age] and [age]. His two sons live with his ex-wife, and all now reside in Australia. The applicant reported that he is now single.

19. Since coming to Australia, the applicant said he spent a long period sightseeing with friends, and then obtained a job on a farm. He is currently working with a friend [doing specified job].

    Fear of harm based on his previous job in Vietnam and political views

20. The applicant said that he came to Australia in 2008 because when he was working at the [Workplace 2] he had a lot of pointed views which were different from the directors and managers. I asked him what sort of views he was referring to, and he said that in the system at the [Workplace 2], there are always periodic meetings at which directors and managers are appointed to different positions, and that he received instructions and requests from managers and leaders of agencies to promote and appoint people because they are the relative of another person, and so they should be appointed because of their seniority. He said that he saw this approach as not being democratic and was different from his point of view. He claimed that he spoke about his disagreement and concerns with colleagues and it became known to his managers and directors that he had a different point of view. He said that he was called into the office and threatened about his so-called incorrect ideology or points of view. He said that he was disappointed that this had happened, as it meant his colleagues had betrayed him by talking about his points of view to managers and directors. He said that the position he had was a high-level position, and the people he was appointing were at a very senior level. He said that, as he was selected as key personnel and they consider that he went ‘off track’, they will discipline him harshly in order to make an example for the younger generation.

21. The applicant reported that the issues in his workplace occurred around 2005 and 2006, and that it wasn’t an easy time for him because he was stalked, and before he entered any district offices, the manager and directors of the agencies would always call him into their office and explain and instruct him on what he had to do, which meant that he felt he didn’t have any freedom in his work and he was disappointed.

22. He said that because he felt he was mistreated by his agency and was disappointed by his colleagues who had reported him to the managers, he decided to apply to do further study. He applied to study at [an] Academy and was accepted, and his training fees were covered by his agency. He said that the course gave him the opportunity to access a new ideology. He completed the course from 2007 to 2008. As noted above, he has provided a document stating he completed this course, which I accept. After completing the course, he returned to his previous office, but when he returned his managers said he was still rebellious.

23. He said that he decided to come to Australia in 2008, as his wife was studying in Australia at that time. He told his employer that he would like to take leave for three months, however at the end of the three months’ leave he did not return to work and remained in Australia. He said that he didn’t want to return to his job because he couldn’t decide on his own work or own direction and didn’t consider there were opportunities to develop.

24. In 2008, after he had been in Australia for a few months, his friends and colleagues told him that if he returned to Vietnam, he would be arrested, sent to an ‘education centre’ to update his political ideology and receive further training.

25. He noted that his friends had told him that he might be arrested according to provisions (in Vietnamese law) about fleeing the country. He said that, in fact, he didn’t follow any parties or new ideologies in Australia, but because he left Vietnam and has remained in Australia, he thinks the authorities will be able to send him to prison.

26. He claimed to have kept in regular contact with colleagues and friends in Vietnam, some of whom are still working in the same office as he did, and they have told him that he would be arrested if he returns, he would be arrested for not participating in Communist party meetings and fleeing the country, and/or following a different political party and going against the vision of the country. He said that the authorities could use any of those reasons to arrest him. He noted that he has told his colleagues and friends in Vietnam about his political views and the differences between communism and capitalism.

27. He added that he is sure that he would be arrested and sent to prison because the authorities may consider him to be a dangerous staff member. This is because he was selected as core staff, or a red seed/seedling, and has completed further education, and that if the authorities think that he had the wrong ideology, and respects democracy (which is not part of Vietnamese ideology). He described his ideology as not wanting to strictly adhere to what managers and leaders say, not keen on having one ruling party and prefers the system in Australia.

28. He also claimed that he attempted to resign from his role, and also resign as a member of the Communist Party of Vietnam. He said he submitted his resignations three months after arriving in Australia, however, he said he has not received confirmation of his resignation and so he believes he will be considered to still be in his role, and still a member of the Communist Party. He thinks that he could be charged and arrested for fleeing the country, following another political party and going against the vision of the country, and not attending Communist Party meetings.

29. The applicant confirmed that since coming to Australia, he has not participated in any political activities. He said he has friends who are members of parties, and when I asked him to tell me which parties they are members of, he said that he has friends who had served the government of Vietnam in the past, prior to the ruling of the current parties, and when he talks with them, they share political points of view. He said he thinks some of those views are correct, and some are not correct, and they are ordinary friends sharing information.

30. At the second hearing, in response to my queries about the process for leaving the Vietnamese Communist party, he said that when he first arrived in Australia, he received a referral from his chapter of the party in Vietnam to refer him to join and participate in [the Communist Party] which meant that he had to participate in activities in [Australia]. He said that he participated for three months, which consisted of contacting them by phone, and he was told the membership fee was waived. He said he could not remember when he last contacted the Chapter in Australia], but it could have been early in 2009. He said that after he stopped contacting the Chapter, he received a few calls on his phone [but] he did not answer. I asked him why he had not raised the referral of his membership to the Chapter in [Australia] earlier and he said it was because he had not been asked about it.

    Loan claim

31. The applicant said that when he was working in his office in his human resources role, he and others were bored. For this reason, he decided to send his wife overseas to study, however the expenses (to come to Australia) were huge and they couldn’t afford it, so they used all their savings and got financial support from his parents and parents-in-law, but it still wasn’t enough. He said that they decided to borrow money from a loan shark in 2006 (prior to applying for his then wife’s student visa), and they haven’t repaid the loan. He thinks that the interest has increased sharply, and his parents advised him that the loan sharks come to their house, break furniture and threaten to kill them. He is scared to return to Vietnam because of the unpaid loan and the threats made towards his family. He said that the amount he borrowed was 500 million dong (which is equivalent to approximately $30,000 AUD at the current interest rate). At the second hearing, the applicant described the person he borrowed money from as his wealthy neighbour, and when he couldn’t pay the loan back, they involved a gang.

32. I asked the applicant to describe the terms of the loan. He thought that the terms of the loan were 10,000 dong per million per day. He described the contract as a handwritten one, and he left it in Vietnam. He did not have evidence of making payments to the loan shark, and said that they had not taken any kind of collateral. He estimated that the amount owing on the loan would be 5 billion Vietnamese dong, and he is responsible for the money, despite the loan being used for his ex-wife’s education as he took out the loan and she has left all the responsibility for the loan to him.

33. I asked the applicant how he thought he would be able to pay off the loan when he first took it out, and why he hadn’t paid it back. He said that for the first few years after taking out the loan, his family (his brothers) helped to pay off the interest but later they couldn’t afford to pay anymore, and he was already in Australia and found it difficult to cover living expenses in Australia and so couldn’t send any remittance.

34. He said that the last time his family in Vietnam had heard from the loan shark was a couple of months ago, and that the people associated with the loan shark come every month to his brother’s house, ask for information about him (the applicant) and that his brother tells them that he hasn’t contacted the applicant so cannot provide any information.

35. I asked him whether his brothers had been to the police about the harassment they had received from the loan shark, and he said they did report it to the police about one year ago, but the police did not take action and said they did not have authority. I asked him what had happened a year ago that led to his brother going to the police, and he said at the time the loan shark was coming to visit his family every week, and there had been pressure on his family.

    Findings

36. The applicant provided to the Tribunal, prior to the hearing on 4 June 2024, documents showing his education and work history. I accept the applicant completed his studies, and worked in [Workplace 1] and also in a senior human resources [role], described as the [Personnel Division], prior to coming to Australia.

37. I find that the applicant’s views on politics centre around his disagreement with nepotism, in particular the placement of people in roles not based on merit, but based on their family connection. He expressed frustration at not being able to do his role (which was to appoint and place people in senior positions) without interference from other senior people, and that he disagreed with how people were being selected.

38. I find that, despite concerns about his ideology (opposing the way people were selected for government roles), the applicant claimed that he was selected as core staff and was given further training (as evidenced by his [Qualification 3]) and then continued in his role, indicating that his employer had sufficient trust in him for him to be given additional training and remain within the provincial level organisation.

39. The applicant was able to depart Vietnam legally in July 2008, and according to his evidence, he came to Australia about one year after his wife did. He had claimed that his wife came to Australia to study, rather than him, because he would not have been given permission to leave the country. He said that he was given permission in 2008 because he had applied to visit his wife and he also applied for both his children to accompany him, which he said meant that they would think he would have to return. However, he said that when he got to the airport for his flight to Australia, he left his children in Vietnam and came to Australia alone. I do not accept that the authorities would have permitted him to depart on the basis that he was travelling with his two children to visit their mother, and therefore he and the children would have to return to Vietnam. By allowing the applicant to depart the country with his two children to visit his wife, the authorities were effectively allowing the family to spend time together abroad and this would potentially allow the family to seek options to remain abroad and not return to Vietnam. While he came to Australia alone without his children, if the authorities had concerns about him not returning to his job, his children remaining in Vietnam may have acted as an incentive for him to return, however he was permitted to depart with his children. He said that his two children were very young at the time, and he could not afford to look after them and keep them in Australia without an income, and the authorities knew this so they permitted him to leave Vietnam with them. I do not accept that the authorities would consider permitting the children to travel with him as an incentive for him to return to Vietnam, rather it indicates that at the time of his departure from Vietnam the authorities did not have an adverse interest in him. Once abroad, it would be possible for the applicant to work and generate an income to remain abroad, and I do not consider that the authorities would not have been aware of this possibility, such that they would assume he would have to return to Vietnam with the children. I find that, as the authorities did not prevent him from departing the country, the authorities were not sufficiently concerned by the applicant’s political views or ideologies and were not concerned that he would remain abroad and engage in political activities.

1. The applicant was issued Vietnamese passports in 2012 and 2022 without difficulty. Copies of the personal particulars pages have been provided to the Tribunal. The applicant said that he had to be issued a passport because he was a Vietnamese citizen, and not an Australian citizen. The Vietnamese Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’, however, in practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.[1] The applicant said that if he hasn’t been convicted of an offence, he has to be given a passport. I find that, as the applicant had no difficulties obtaining Vietnamese documents in 2012 and 2022, he was not of adverse interest to the Vietnamese authorities at either point in time. I have considered whether the authorities would be compelled to issue him with a Vietnamese passport because he is outside the country and had not been charged with any offences. Given he has claimed that he would be of adverse interest to the authorities for political views, for joining overseas forces to betray the country, for being considered to have fled the country, and he had claimed to have stopped communicating with the [Australian] chapter of the Communist Party in 2009 (where his membership had been transferred), I do not accept that he would have been freely issued a passport from Vietnamese authorities in Australia without difficulty in 2012 and 2022 if he was of interest to the Vietnamese authorities, including at his provincial level, at those times for any reason including for his political views, for being suspected of joining overseas forces to betray the country or for fleeing the country.

   [1] Department of Foreign Affairs and Trade, Country Information Report – Vietnam (11 January 2022), para 5.25.

2. I have considered whether he would be of interest to the authorities for not attending Communist Party meetings since his arrival in Australia. I have also considered whether the applicant would be of interest to the authorities because he attempted to resign from his job and also resign from the Communist Party, and has not received a response.

3. A 2022 Vietnamese legal information website ‘LawNet’ article about leaving the communist party references Article 8.1 of the Regulation 24-QD/TW of 2021 on the implementation of the Party Charter that outlines and summarises the circumstances when party membership can cease:

   8.1. Remove communist party members' names.

   The branch shall consider and request the competent committee to decide on removing communist party members' names from the list of communist party members in the following cases: communist party members fail to participate in party activities or to pay party fees for three months of the year without valid reasons; communist party members voluntarily return communist party membership cards or self-destruct communist party membership cards; communist party members who have reduced their will to strive, fail to perform their duties as communist party members, or have been educated by the ministries without progress after 12 months of striving; communist party membership for consecutive two years violates communist party member status; communist party members fail to meet the political standards prescribed by the Politburo.

   […]

   Thus, according to the above regulations, communist party members in the following five cases will be removed from the list of communist party members:

   - Communist party members fail to participate in party activities or to pay party fees for three months of the year without valid reasons

   - Communist party members voluntarily return communist party membership cards or self-destruct communist party membership cards;

   - Communist party members who have reduced their will to strive, fail to perform their duties as communist party members, or have been educated by the ministries without progress after 12 months of striving; communist party membership for consecutive two years violates communist party member status.

   - Communist party members fail to meet the political standards prescribed by the Politburo.

   Communist party members make a self-review and review before the branch. If the branch committee requests a third time, but the communist party member fails to complete the review or does not attend the review meeting, the branch will still consider and handle that communist party member.

   In case a communist party member deliberately fails to complete the review at the request of the branch, the branch shall immediately carry out the procedures for removal of the communist party member's name.[2]

   [2] 'What is the latest application form for leaving Party in 2023? In what cases will communist party members be removed from the list of communist party members?', LawNet Vietnam, 29 December 2022, 20240415111542

4. I put to the applicant that it appears that leaving the Vietnamese Communist Party is possible, and that names are removed from the list of members when members do not participate in party activities or pay party fees for three months of the year without valid reasons, which would be applicable to him. It is possible to seek review of removal from the list of members, but that wouldn’t be applicable to his situation. Individuals who have resigned from the Communist Party may subsequently be liable for criminal prosecution in relation to crimes committed when a party member, such as for activities related to corruption. Recent media reporting shows that some senior party members have resigned from the party in the midst of an anti-corruption campaign[3] which is also viewed by some critics as a means to oust party members.[4] Based on the available information, the authorities are interested in those who have resigned from the party and are liable for criminal prosecution for crimes committed when they were a party member, such as activities for corruption. However, he has not claimed to have been involved in criminal activities or corruption, and did not seek to leave the Communist Party because of corruption.

   [3] ‘Vietnam Detains Junior Trade Minister in Corruption Probe’, Bloomberg, 21 December 2023, 20240417152406

   [4] ‘Vo Van Thuong: Vietnam’s president resigns, raising questions over stability’, Reuters, 20 March 2024, 20240417152622

5. The applicant said that procedures and processes can sometimes be more flexible, and so he thinks he will still be considered a member of the party despite not having participated for a long period of time, and referred to his membership of the party being transferred to the [Australian] chapter.

6. The applicant said that he had already submitted documents about his job to the Tribunal and noted he had last worked there before coming to Australia. He said it was his understanding that as he had not received any decision about being excluded from [Workplace 2] or the Communist Party, his working status is still hanging. It has been approximately 16 years since the applicant worked in the role, and he submitted his resignation. I find that, given the passage of time, the applicant would not be considered a member of the office, or in the role anymore. In relation to not receiving a response when he sent a resignation letter in 2009 (a job in which he last worked in 2008), I do not accept that this means the role or his status remains hanging, and find that he would be considered to have left the role. I do not find it plausible that his office would consider him to still be in the position after this lengthy period. Further, he had interactions with the Vietnamese authorities in 2012 and 2022 to obtain passports and if he was of interest for resigning or attempting to resign from his job in [Workplace 2], the authorities could have used the opportunity to query him about his departure from Vietnam and the fact he hadn’t returned to the job, but he was freely granted passports.

7. I have found that the applicant was not of adverse interest to the Vietnamese authorities when he departed Vietnam in 2008 and when he obtained passports in 2012 and 2022. I find that the given the passage of time and the available information that members can be removed from the list of Communist Party members if they do not participate for three months, the Communist Party would have removed his name from the list of members. I find that he is no longer considered a member of the Communist Party of Vietnam. Accordingly, he would not be of adverse interest to the Vietnamese authorities for not participating in meetings given he is not considered a member of the party.

8. I have found that the authorities were not adversely interested in him in 2008 when he departed Vietnam, as they allowed him to depart, and I have found that they were not interested in him when he obtained passports in 2012 and 2022, and I have found that he is not considered to be a member of the Communist Party and would be considered to have left his role.

9. I have considered whether the authorities would be interested in him, because of his previous role in Vietnam, because he had remained in Australia since 2008 and because of his discussions about politics with friends in Australia.

10. The applicant claimed that he decided in 2008, after being in Australia for a few months, that he did not want to return to Vietnam, and it was in 2008 that his colleagues at his office told him that he could be arrested if he returned to Vietnam. However, it was not until 2017 that the applicant applied for a protection visa. I asked the applicant why he had delayed applying for a protection visa if he was concerned about returning to Vietnam. He said that initially he thought about returning to Vietnam until he talked to his friends at his office, and also because of his issues with the loan (loan shark and gangsters). I noted that, based on his evidence, he was aware of these problems, such as potential arrest, in 2008 as his friends had told him about problems at this time and so there was a significant delay in applying for the visa. I find that the delay in applying for the visa, in the context of the applicant claiming his troubles were in existence in 2008 after his arrival to Australia, has caused me to doubt whether he fears harm as claimed. I also do not accept that his friends and colleagues have told him, since his departure, that he would be arrested if he returns, given I do not accept that he was of interest to the authorities, or that he would be of interest to the authorities, and because if he had been told by his friends and colleagues about the authorities interest in him since 2008 that he wouldn’t have waited until 2017 to apply for the visa.

11. The topics of interest to Vietnamese authorities can change or depend on local government priorities at the time. DFAT reports that some ‘red lines’ and sensitive topics, like human rights and freedom of expression, are well known to people and do not change from day to day. Other issues, such as environmental events or digital rights, are more likely to change and their sensitivity is more difficult for activists to predict.[5] DFAT considers the risk to people considered to be activists. DFAT assesses that it is difficult to make an overall assessment of risks to activists as there are no clear patterns to determine who will be arrested or when. Those who publicly criticise the Government face a moderate risk of official discrimination regardless of what they are protesting. Those who organise protests are more likely to face discrimination, but the possibility of a low-level activist being arrested cannot be discounted.

    [5] Department of Foreign Affairs and Trade, Country Information Report – Vietnam (11 January 2022), para 3.53.

12. I accept that the applicant has discussed politics with friends in Australia. These have been general discussions and I find that he has not been involved in politics to a level that would indicate he is a threat to the Vietnamese authorities. He confirmed that he has not followed any new parties or ideologies since coming to Australia. The applicant described being disappointed about people being promoted on the basis of family connections and I find that his political views centre around concerns about corruption and nepotism within Vietnam. He has referred to democracy, but did not elaborate on his support for democracy. I do not consider the applicant to be an activist in support of any particular cause which the authorities in Vietnam would be concerned about, and would not be considered to be an activist if he returned to Vietnam. As the applicant has not followed any new political parties or ideologies in Australia, and his political views are primarily about corruption and nepotism, I do not accept that the applicant has told his friends and colleagues in Vietnam about any matters that would mean he would be of adverse interest to the Vietnamese authorities, or would have led to them reporting him to the authorities. While I accept that he may have discussed capitalism and democracy in general terms with his friends and colleagues in Vietnam, I do not accept that he would be perceived to be someone who is against the ideology of the Vietnamese state or would be of interest to the authorities through having general discussions with friends and colleagues.

13. The applicant has been in Australia since July 2008, has been recently working [and] has been able to obtain Vietnamese passports from Vietnamese authorities in Australia. He also claimed that his membership of the Communist Party was transferred to the [Australian] chapter when he arrived in Australia and was contacted by [them]. He did not mention in his visa application or at the first hearing that his membership of the Communist Party had been transferred to the [Australian] Chapter, which I also find casts doubt over whether it was transferred as claimed as I find that he would have informed the Tribunal about his claimed interactions with the Vietnamese authorities. If the applicant was leaving Vietnam for a short period of time on holiday (which is what he claimed) and the authorities were under the impression that he would return to his job, it is not apparent why his membership of the Communist Party would be transferred to the [Australian] branch. Given that he has been able to obtain passports in 2012 and 2022 and because he was coming for a short visit to see his wife, I do not accept that his membership of the Communist Party was transferred to the [Australian] Chapter or that he was contacted by [them] when he arrived in Australia, or that he had to report by telephone to the authorities in [Australia].

14. Given all these considerations, I do not accept that he has been of adverse interest to the Vietnamese authorities, and I do not accept that he would be of adverse interest to the Vietnamese authorities on return or that he would be charged for fleeing the country, not attending meetings, for following a political ideology, or for following a different political party, or for going against the vision of the country, or for abandoning his role in [Workplace 2]. He would be considered as someone who had attempted to migrate to another country, or who had migrated to another country (given he has been in Australia for 16 years) but not someone who would pose a threat or risk to the authorities and therefore there would not be of adverse interest on return. He has not been politically active in Australia (such as joining political parties or movements) and on return, I find that, while he may engage in discussion about politics with friends (as he has done in Australia) including discussions about the problem of corruption in Vietnam and general discussion about capitalism and democracy, he would not engage in political activities or discussions which would come to the attention of authorities, or would be of concern to the authorities or have a profile of interest to the authorities, having regard to the types of issues which are of interest or concern to the Vietnamese authorities, such as people who have publicly criticised the government or those who have organised protests.  

15. Having regard to my above findings, I do not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future on the basis of his political opinion or perceived political opinion, or for any other reason, from the Vietnamese authorities, the Vietnamese Communist Party, or from his former employer,  [Workplace 2].

16. I have considered the situation for the applicant returning to Vietnam, as a failed asylum seeker and/or a returnee. DFAT reports that Vietnamese authorities occasionally question returnees from Australia upon their arrival in Vietnam, the interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part.[6] I accept that the applicant, if he returned to Vietnam, would be questioned. The applicant departed Vietnam legally. I accept that he would be asked about his time in Australia and why he was returning to Vietnam now. The applicant said that he thinks he will be allowed to enter the country, but they would stop him from exiting the country because they want to discipline him or do some measure because he has lost the trust of his employer in his province. Given I do not accept that the applicant will be of adverse interest to the Vietnamese authorities, I do not accept that he will be disciplined. He would be considered as someone who had migrated abroad and was now returning to Vietnam. Even if it became known that he was a failed asylum seeker, this is reported to not be generally stigmatised in Vietnam, and migration has been a feature of Vietnamese lives for decades.[7] I accept that the applicant would be able to be registered with the authorities if he returned to Vietnam and would not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future on the basis of being a failed asylum seeker or a returnee from abroad.

    [6] Department of Foreign Affairs and Trade, Country Information Report – Vietnam (11 January 2022), para 5.31.

    [7] Department of Foreign Affairs and Trade, Country Information Report – Vietnam (11 January 2022), para 5.34.

17. In relation to the applicant’s claim that he took out a loan in 2006 which is unpaid 18 years later, and that he faces harm from gangsters or loan sharks, the applicant said that he took out the loan because he was bored and wanted to send his wife to Australia to study. I asked the applicant to explain why he would use an illegal loan shark, given the practice is illegal in Vietnam,[8] and as he was a senior staff member at a government office, he would be taking a risk which could cause problems for him at work. He said that he had to use a loan shark to support his wife’s education in Australia, and that he was a target of interest in his office, because they thought he had a different ideology, and so they had to find a way to escape from the situation. He said they had tried to borrow money from family and friends, but he could not get help from them due to economic difficulties, and no bank would assist him as he did not have collateral for the loan, so that’s why he decided to borrow from a loan shark.

    [8] Department of Foreign Affairs and Trade, Country Information Report – Vietnam (11 January 2022), para 3.102.

18. Given the applicant’s claim that he was of interest at his office due to a perception that he was following an incorrect ideology and needed to find a way to leave the country, I have concerns about his claim that he would then engage in an illegal money lending practice (thereby creating another potential problem for himself) and then use the money to send his wife overseas and not himself first, or both leave together. He claimed that he was the person of interest and not his wife. The applicant said that the authorities would not have let him go overseas to study because, as core staff, he had received training in Vietnam, and that if he went abroad, they might think he would follow different political parties, associate with illegal parties, or engage in a different political ideology. However, the applicant left Vietnam legally in 2008 and was given leave from his work to do so. As I have found above, I do not accept that he was of interest to the authorities when he departed in 2008. While I accept that his wife came to Australia to study, if he considered that he needed to escape his situation at work and he and his wife were in such financial difficulty that they needed to engage a loan shark, I do not accept that they would use the money for his wife to leave Vietnam and study, rather than prioritising finding a way for him to leave Vietnam using funds obtained through a loan.

1. The applicant said he and his siblings made payments on the loan for a period of time until May 2009, and that since 2009 no repayments on the loan have been made. He said that he had made payments himself when he was in Vietnam but when he came to Australia, he could not make payments. I asked him what his plan was with the loan, and he said that his elder and younger brother had been doing well financially (so they could assist with the loan) and his original plan was to pay off the loan within three years of taking out the loan. However, his brothers’ business declined due to competition in the market, and so they were unable to continue helping him and asked him to pay for the interest. He said that two of his brothers had a [business], selling [products], and that they used to help him with paying off the interest but their business declined. One of his brothers who ran the business is now retired, and the other brother now works for [an] office. He said that his sisters worked in a [workshop] owned by one of their sons, and that his other brother worked in the army.

2. The applicant said that he was unable to pay off the loan because he didn’t have sufficient funds in Australia, and his brothers in Vietnam were no longer able to make payments. The applicant has been working in Australia, and some of his brothers continue to work. He said that his income is low and that’s why he couldn’t repay the loan from Australia, and his family (his brothers) are unable to pay the loan because their business declined.

3. While I accept that financial situations of individuals and families can fluctuate, if his family in Vietnam were receiving threats over a number of years with visits once a month or so, including having gangsters come to the home and break furniture, I find that the applicant and his family in Vietnam would have taken some steps to repay the loan, at least in part, to avoid or reduce the harassment. One of the applicant’s siblings is retired, however the others are working and he is working in Australia. I appreciate that he has expenses in Australia and his family have expenses in Vietnam. However, given the claimed threats and ongoing harassment from the loan sharks towards his brothers and their families in Vietnam, which he also claimed prompted them to make a police report due to the pressure on the family, I do not accept that, if the loan existed, that the applicant and his family would not have been able to, or would chose not to, make any payments at all on the loan since 2009. Given my concerns, I find that if the loan existed, he and his family would have taken steps to pay off the loan or at least part of the loan to avoid threats and harm, particularly given the applicant is employed and one of his brothers in Vietnam, who previously assisted him, is employed.

4. Given my concerns and findings on the applicant’s claims about the loan, I do not accept that the applicant took out a loan as claimed, or that the applicant’s family in Vietnam has faced difficulties or threats in connection with a debt. Given that I find that the applicant did not take a loan as claimed, I find that the applicant will not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future in relation to a debt.

   Conclusion

5. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

7. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Bryn Butler
   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.

   …