1834643 (Refugee) - [2024] AATA 3323

1834643 (Refugee) [2024] AATA 3323 (12 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834643
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Bryn Butler
DATE:12 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first named applicant a protection visa.
The Tribunal does not have jurisdiction in relation to the second named applicant.

Statement made on 12 August 2024 at 4:43pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from betting syndicate – acted as middleman, using money then IOUs from betters – syndicate demanded money which punters had not paid – threats to applicant and harassment of parents – loan taken out by parents for applicant to study and work in Australia now paid off – vague and exaggerated claims and evidence about betting syndicate – member of family unit partner – relationship ceased and second applicant’s application withdrawn with no jurisdiction to review – child’s health – separation from child not refugee or complementary ground, and child’s future speculative – possibility of requesting ministerial consideration directly – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
WZARI v MIMAC [2013] FCA 788; [2013] HCASL 201
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The second named applicant sent correspondence to the Tribunal in March and April 2024 stating that she wished to withdraw her review application. The Tribunal wrote to the second named applicant to clarify her intention. On 24 April 2024, I accepted that the second named applicant validly withdrew her review application. Consequently, the Tribunal does not have jurisdiction in relation to the decision to refuse to grant her a protection visa.
The first named applicant (hereafter referred to as the applicant) is a [Age]-year-old man and citizen of Vietnam. He applied for the protection visa on 19 June 2018.
The applicant was assisted by a lawyer when he made his visa application. In his protection visa application, he set out his claims for protection in a statutory declaration dated 21 June 2018. His claims are summarised as follows:
·He grew up in Quang Ngai in Vietnam, and lived in Vietnam all his life before coming to Australia.
Betting syndicate
·Between March 2011 and May 2013, one of his friends, [A], introduced him to betting on football and other sports. He was told that he could be a middleman and make a living, placing bets for other people on sporting games.
·In the beginning, friends and family would give him small amounts to bet for them. Later, he started to take bets using IOUs and he would place the bets before they would pay him. Initially they would settle their bets after the games. Soon, the amounts of IOUs he received amounted to $30,000. When he called the punters to pay, they refused.
·The people he worked with demanded that he give them money they alleged he had collected. He tried to explain to them that the people who bet on the games did not pay him. They didn’t believe him and claimed that he took the money, because they did not allow bets to be placed unless payments were received.
·He did not have the money to pay them, and the punters ignored him and did not repay their IOUs. The syndicate people kept harassing him.
·He sold his motorbike and managed to repay 50 million Vietnamese dong (VND) in August 2013. He also managed to pay them back a further VND200 million. He still owes VND300 million.
Loan to come to Australia
·Before coming to Australia, he was living with his parents. They were not earning good wages. He told them he wanted to come to Australia. They did not agree because they could not afford the cost. He asked them to borrow money from relatives and banks. He told them that in Australia students are allowed to work, and he reassured them that he would work in Australia while studying and he would be able to repay loans. One reason he begged his parents to help him come to Australia was to avoid the syndicate, as they are thugs and gangsters. He thought that if he left Vietnam, they would not be able to find him and would stop threatening him with harm.
·In February 2014, when he arrived in Australia, he was under a lot of pressure to study and work at the same time, and also pay for his rent and living expenses. In April 2014, he recalls receiving an email from his school asking for $2,000 for tuition fees. He told them that his parents had already paid $22,000 for half the year of the English course, and half a year of a Diploma course. The school told him that if he didn’t pay the $2,000, they would report him to the Department of Immigration to cancel his visa.
·He asked his parents to send more money. They didn’t have the money and he asked them to borrow money so the school would not report him to the Department of Immigration. His parents sent him the money. Three to four months later he received another email from the school, increasing the fee. He moved to Melbourne where tuition fees were lower.
·In February 2015, he received a phone call from someone in Vietnam telling him that he owes them money. They told him that his mother had his uncle [Mr B] help them borrow money, and that his mother had said the applicant would repay the loan when he had completed his studies. His parents had been servicing the loan.
·In May 2015, he ceased his studies and claimed a refund. He sent money to his parents to repay the loan for his studies in Australia. His parents told him $12,000 was remaining.
·His uncle [Mr B] called him and told him that his parents could not continue to service the loan, and that he needed to help his parents. His parents also called him and reminded him of his promise to repay the loan.
Visit from syndicate to his parents’ house
·People from the betting syndicate came to his parents’ house to find him. They broke furniture and pushed his parents aggressively. His parents told them that he was in Australia and would repay them when he returns.
·Strange men came to his parents’ house on many occasions, and they threatened his family. His parents called the police, but when the police arrived the men from the syndicate had left. When his parents told the police why the men had come, they told his parents that he should repay the money.
Fears
·He is worried for his family in Vietnam. He has brought them trouble and problems, which they cannot settle for him.
·He is afraid to return to Vietnam because both the syndicate and the person from whom his uncle had borrowed money on his behalf will hurt him for failing to return the money to them.
The delegate refused to grant the visa on 1 November 2018 on the basis that they did not find the applicant engaged Australia’s protection obligations. The applicant applied to the Tribunal for review of the decision on 26 November 2018.
The applicant appeared before me on 7 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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, 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
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
The applicant is from Quang Ngai in Vietnam. His parents and [sister] reside in Quang Ngai. He completed his school in Quang Ngai and then in [year] he went to Ho Chi Minh City in to do a vocational course in [Subject]. He said that after he completed the course in 2009, he remained in Ho Chi Minh City and worked for a business involved in [a] sector. He said it was a full-time job and he remained in the job until he came to Australia in February 2014.
He said he met his ex-partner (the second named visa applicant) in Australia. They lived together (he moved in with her in 2015), registered their relationship and have one son together, who was born in [Year]. The relationship ended in March 2023.
In Australia, the applicant said he studied in Adelaide in 2014, and then for one month in Melbourne in 2015. He then ceased studying. Since then, he has worked on [workplaces 1] and in [workplaces 2]. He said he has worked regularly since 2015, and he currently works full-time in a [workplace 2].
Claim for protection
The applicant said that if he had to return to Vietnam, he fears harm from the betting syndicate. He said that around 2018 or 2019 they came to his parents’ house regularly and harassed his parents. They also sent him messages directly. He isn’t sure how they got his number in Australia. They told him that if he returns, they would arrest him, torture him, and hit him. He blocked their number and got rid of the SIM card. He said that in [Year], his son was born, and he didn’t focus on the problem in Vietnam.
I asked him why he fears harm from the betting syndicate. He said that the guys who control the betting/gambling debt syndicate run an illegal protection service, and they are thugs. He told me that if he returns to Vietnam, when he lands at any airport, they will find him. I asked him why they would want to find him. He said that they want him to pay them money, which is the debt he owes them, and that they hit him previously.
I clarified with the applicant whether he was concerned about the betting/gambling syndicate and also the people his parents (and uncle) had borrowed money from in relation to his studies in Australia. He said that his parents have repaid the debt for his studies, and his fear is about the syndicate. He said he had given money to his parents to repay the debts in relation to the money borrowed for his studies. He said that his parents told him that other debts are his responsibility.
I asked the applicant to explain how he got involved in the syndicate and why he had a problem with them. He said that in 2013 he was out in Ho Chi Minh City and his friend, [A], referred him to a football betting website. He used the website to bet, and there were other people who also used the website to bet through him. He said that sometimes if people lost, they paid him money, and sometimes people lost and didn’t pay him money and the amount kept accumulating up to $30,000.
I asked the applicant to clarify his involvement in the syndicate and to tell me the name of the website he was referring to. He said he didn’t know the name of the website and that the website was in Vietnam. He confirmed he had used the website from 2013 to place bets for himself and other people. I asked him why he didn’t know the name of the website. He said it was a long time ago, and that he was given a password to access the website, and that it was similar to TAB or bet365 (which are gambling websites in Australia).
I asked him how many bets he would place a week. He said that he played a little bit himself, but other people placed more bets. I asked him how he was involved, and how it was a problem for him if other people lost money on their bets. He said he was a middleman and earned a service fee or commission fee from each bet. He said that if he wanted to play, he could, but if he didn’t want to play then someone else could play using the account. I asked him who the people were who were playing using his account and from whom he was earning a commission from their bets. He said they were friends and other people in the coffee shop on weekends. I asked him to explain how the betting worked in a coffee shop. He said that he would open his laptop in a coffee shop, people would see it, and they would place bets through him. I asked him what they would bet or gamble on, and he said it was soccer/football games from around the world.
I asked him to explain how he placed bets. He said that the organiser gave him $10,000 in his account. I asked him why the organiser would give him $10,000 to use to place bets. He said that was the limit, and later when he had more credibility with them, they could increase the amount. I confirmed with him that they had given him $10,000 in his account, and questioned why they would do this. He then said that this was because of the referral from his friend, otherwise he would have needed to put down a deposit himself. I asked whether he had to deposit any of his own money into the account, and he said he didn’t. I asked him what the highest value of the account was during the time he used it. He said it was around $15,000 to 20,000. He said the account was denominated in Australian dollars, but the bets were placed in Vietnamese dong. He later changed his position and said the account was in American dollars.
He said that if he had $10,000 in his account, and they lose then $10,000 would be gone and the account would have a zero balance but the next day he was required to pay into the account so that the balance was $10,000 again, and that the players who lost should pay him. I asked him why he would need to deposit $10,000 into the account, and clarified whether the $10,000 was his money to use (and lose if he wanted). He said it was not a gift, and it was to use on bets.
I asked him why he would allow other people to use his account to place bets without taking money from them first. He said it was because of his relationship with them. He said initially they paid him, but then later they didn’t pay up. I asked him how many people didn’t pay him. He said he didn’t remember, and said it was around five to ten people. He then said that if someone lost a small amount, they could use their own money to repay him but if a large sum was lost, they didn’t repay. I clarified with him that he was saying he didn’t remember who owed him money and noted that these were friends who had caused problems for him with the syndicate. He said that it is like in Australia, and that some people should pay but they live in another state like Queensland or South Australia, which is far away, and they ran away, so they live in different provinces. I reminded the applicant that he had said he was in a coffee shop, which suggested it was a local operation with his friends. He said they were his friends but after they lost the money, they ran away to their hometowns. I put to him that he was suggesting that about five to ten people, his friends, ran away to their hometowns to avoid contact with him and to avoid repaying their debts to him. He said some people went to their hometowns and some people relocated to another house, and these people were nowhere to be found. He said that he spoke to one of the people, and they said they couldn’t pay him. I asked him whether he had tried to find the people who owe him money since that time in Vietnam, and he said it was the same and they haven’t paid him.
I discussed with the applicant the amount he needed to recover from friends may appear to have amounted to $10,000 (which was the amount he said he was given by the syndicate to use), and if that was split amongst 10 people, on average, they would have a debt of $1,000 to him, which doesn’t appear to be a large amount. He then said that he was using examples, and that if he could not get money from the players, he would use his own money to top up the account and the organisers would then top up his account again. I asked him why they would do that, and why he would continue with the operation if his friends had failed to return his money. He said that the syndicate knew he was employed and had the ability to pay.
I confirmed with him that his involvement with the gambling syndicate began in 2013 and asked how long it continued before they demanded he repay the money. I also asked how much money he owed to the syndicate. He said that it continued until about three months before he came to Australia and the amount he owed was $30,000.
He then said he got into trouble when the syndicate started to apply interest to the account. They hadn’t initially told him about interest being charged, and that they charged VND3 million a day in interest.

I asked him how much money he had returned to the syndicate when he was in Vietnam. He said he had sold his motorbike and repaid them VND50 million. I asked him whether there were any other repayments, and he said no, he had given them VND50 million from the sale of the motorbike.
I asked him whether the syndicate had contacted his family since his departure from Vietnam. He said that the last contact was over three years ago, and that in the last few years, his family has had no contact with them, but every lunar new year they send someone to check his house to find out whether he has come home for the lunar new year. Over three years ago, he said they sent someone to his house to look for him and they made threats. I asked how often they did that, and he said it was every two or three days, and they also came to his parents’ butcher shop, and they made a scene. He said it was most severe in 2015 and 2016, and then it became less. I asked him why it reduced. He said his father had called the police. I asked him what the police did in response to the report. He said his father had reported that someone had come to their place to damage it, the police came and asked his father why, and his father said he didn’t know and someone had come to ask for repayment of a debt and made threats about chopping legs and arms if his son didn’t repay the debt. I asked whether his parents had heard from the syndicate after his father made the report. He said that every one to two months they came, but they stopped coming three years ago and now check every lunar new year. I said I would like to know what prompted the syndicate to stop coming to his parents’ home three years ago. He said that they came less because the police had come, and that they had realised that he hadn’t returned home.
The applicant said that he has been making payments to the syndicate from Australia, and he has paid interest but not the principal. He said that he has been making payments for over 10 years. I asked why the syndicate would come to harass his parents if he had been making payments over 10 years because it would appear that the syndicate were getting what they wanted (money from the applicant). He said that in 2015 and 2016 he was making payments, but he didn’t repay the amount owed, because he only paid the interest and the principal was always there. I asked the applicant to confirm what payments he had been making to Vietnam. He said he had sent money to repay the debt to [Mr B], which was the loan used to pay for his studies in Australia, and then he also repaid the debt to the syndicate. I asked whether he had been paying money to the syndicate since arriving in Australia. He said that he pays them interest.
I asked the applicant whether he had any other concerns about returning to Vietnam. He said that he would like to remain in Australia for a couple more years, because his child is still very young now. He said he has already lost his ex-partner (because of the separation) and he does not want to lose his child. He said he needs some more time in Australia because a couple of days ago he received news that his son, who is [Age], has a [health] issue and that he may be [deleted]. For this reason, he wants to remain to look after his child. He added that if he returns to Vietnam, he will need to hide himself to avoid the thugs in the syndicate, and he would not be able to see his parents. He said that his parents have ostracised him.
Findings
The applicant confirmed that he and his parents had paid the debt to the people who loaned them money so that he could come to Australia. As the applicant confirmed this debt has been paid off, I find that he does not face a real chance of serious harm, or a real risk of significant harm, in relation to the loan he claimed was taken out by his parents to support his studies in Australia.
In relation to the applicant’s claimed involvement in the gambling syndicate, I put to him that I had concerns about whether he was involved in the syndicate, and whether he has a debt to the syndicate, as claimed.
Firstly, the applicant could not recall the name of the website he claimed he used to place bets. While I acknowledge he claimed that his involvement in the syndicate was in 2013, I do not accept that he would not be able to recall the name of the website given his involvement in the website was one of the reasons he came to Australia (to avoid the thugs in the syndicate) and he has claimed that his parents faced ongoing harassment from the thugs in Vietnam because of his involvement with the syndicate. He claimed to have been involved in placing bets through the website in 2013 and his involvement spanned a number of months, including having debts owed to him by up to ten people because they had used his account. Given the extent of his claimed involvement in placing bets using the website with the syndicate, I would expect that he would remember the name of the website that had caused him the claimed difficulties in Vietnam, and had been one of the reasons he claimed he needed to leave the country. He said that he didn’t want to remember the website, because that was the reason he came to Australia. While I accept that someone may want to forget their involvement in such a scheme if it caused them significant troubles, I do not accept that, given his claimed involvement and the claimed ongoing threat to him, that he would not be able to recall basic details about the website, such as its name. The applicant’s inability to provide a name for the website has caused me to doubt whether he was involved in the syndicate as claimed.
Secondly, in the applicant’s written statement, he does not refer to being charged interest by the syndicate for the debt. In the statement he states that he was owed $30,000 by other people (and the currency the debt is denominated in is not stated) and that VND300 million is remaining on his debt to the syndicate. The statement is dated 21 June 2018. By this point in time, he had been outside Vietnam for over four years and his claimed involvement in placing bets with the syndicate ended in 2013, either in May or towards the end of the year. As he claimed to be making payments from Australia and that these payments covered interest but not the principal, he would have paid the syndicate interest. The statement says that he owed them VND300 million, which is approximately AUD$18,000.[1] There is no reference to being charged interest of VND3 million a day, which would be approximately AUD$180.[2] I asked the applicant why he hadn’t referred to the interest charged in his statement. He said that he had put the amount of interest charged and that he wasn’t exacerbating the amount for sympathy. I do not accept the applicant’s response. While he was assisted with his visa application, I do not accept that he, and the people assisting him, would state that he owed VND300 million to the syndicate and not include the amount of interest owed and the interest rate, if such an interest rate was being charged on the debt. I find that he has stated the amount of interest charged at the hearing so as to exaggerate the claim of harm from the syndicate, and this has caused me to doubt whether he was involved in the syndicate and whether he ever had a debt to them as claimed.
[1] VND to AUD - Vietnamese Dongs to Australian Dollars Exchange Rate (xe.com), accessed 12 August 2024. As at the date of the statement, 21 June 2018, it was AUD$17,714 (Currency Converter | Foreign Exchange Rates | OANDA ( accessed 12 August 2024.
[2] VND to AUD - Vietnamese Dongs to Australian Dollars Exchange Rate (xe.com), accessed 12 August 2024.
Thirdly, the applicant claimed that his friends owed him money and while they initially repaid him for their bets, they did not repay debts incurred for subsequent bets, and they disappeared to avoid him. He could not recall how many people did not pay him their debts, but said it was five to ten people. As the applicant said he had been given $10,000 by the syndicate and confirmed he had not put in any of his own money, I asked him whether that meant that the most he owed the syndicate was $10,000, but later he said this was only an example amount. He later said the amount he owed the syndicate was $30,000. I put to the applicant that I may find it difficult to accept that up to ten of his friends would move or disappear to avoid paying him. It was a local operation mainly run from a coffee shop. While I have concerns about the applicant’s evidence about the amount he owed the syndicate, even if I were to accept the account required payment of $30,000 and this was the amount owed to him, this would mean on average his friends owed him $3,000 each. He said that his friends owe him the amount he owed to the organiser, and when that happened the organiser stopped putting money into the account, and then they asked for interest. His friends could not pay him. He said that if they owed VND5 million, they would give VND500,000 to pay the interest. He said that because of this, he was in debt and paying interest to the syndicate. I do not accept that the applicant would be unable to recall exactly how many friends owe him money, particularly given the claimed difficulties he had been placed in because of his friends’ actions. I do not accept that, if the applicant had been allowing friends to use his account, that up to ten of his friends would move away to avoid him and not pay their debts, and that he would continue to be involved in the syndicate despite the trouble it was causing. Even if they were acquaintances, and not his friends, I do not accept that he would be unable to recall who owed him money and would not pursue them for the debts. While the applicant has claimed that his involvement in placing bets with the syndicate was over 10 years ago and it is possible that he may not be able to recall specifics of the debts to him from his friends, he provided vague responses about the number of people (five to ten) and was unable to provide further details or any amounts. If he was unable to recall who owed him money and the amounts, he would not be able to seek recourse from his friends and have them clear their debts to him. These concerns about how the applicant got into debt and who owed him money has caused me to further doubt whether the applicant was involved in the syndicate as claimed, and whether he ever had a debt to them as claimed.
Fourthly, I put to the applicant that I was not clear why a betting/gambling syndicate would give him $10,000 to use to place bets, and would top up his account if he had had difficulties repaying money in the past. I also found it difficult to accept that he would continue with the operation when his friends didn’t pay and he ended up being owed $30,000 (and in debt to the syndicate). It would appear that the syndicate were taking a risk with their money by giving him money to gamble. He said that it was because of the referral from his friend and that they had already investigated him, knew where he came from and knew his financial ability to finance the debt. He said they had tempted him into the system. He said they had topped up money to trap him, to put him in the cycle and then closed the circle, then asked him to repay the interest, and came to the family house of the victim to demand money for the interest and principal. While I accept that online betting syndicates exist, I do not accept that the applicant would be given $10,000 from the syndicate to place bets, and that they would continue to give him money if he was in financial difficulty, as this would cause problems for their operation if people cannot pay their debts. He said that he was vetted by the syndicate, and they knew his financial ability to finance the debt. This would indicate that they wanted to protect their money and avoid people owing them money. While the applicant claimed that it was to trap him into debt, as I have found above the applicant did not refer to being charged interest in his statutory declaration dated 21 June 2018 and I have found that he added this detail at hearing to strengthen his claim. I have considered the applicant’s explanation, but I have doubts as to whether the betting syndicate would give him money to use to place bets, and to continue doing so when he did not pay his debts. This further causes me to doubt the applicant’s account of events, and whether he was involved in the betting syndicate as claimed.
Fifthly, in the applicant’s statement submitted with his visa application, he claimed to have been involved in the syndicate from March 2011 until May 2013. At the hearing he said he commenced his involvement in the syndicate in 2013 and that it continued until about three months before he came to Australia, which would have been around October or November of 2013. According to the statement, the applicant was involved in the syndicate for over two years, and his involvement ended in May 2013. However, at the hearing, his claimed involvement was for less than a year and ended towards the end of 2013. The applicant said that he was very stressed because of the updates on his child’s health and as a result, he was not very well prepared for the Tribunal. He said it was the first time he had come to the Tribunal, he was not using it as an excuse but he confirms that he is not telling a lie. While I acknowledge that the applicant may be stressed about his child and that he had not appeared before the Tribunal before, I do not accept that this explains the discrepancy in the claimed period of time he was involved with the syndicate. He has claimed that his involvement with the syndicate has caused significant problems in his life. He was able to recall some other details about his claimed involvement in the syndicate. I do not accept that he would need to prepare for the Tribunal to recall this detail about the time period he was involved or that stress about his child would cause him to change this detail by two years and shorten his involvement to less than a year. He did not indicate that he wasn’t sure or couldn’t recall when he was involved in the syndicate, but said it was from 2013. This discrepancy in his account has caused me to doubt whether he was involved in the syndicate as claimed.
Sixthly, I put to the applicant that it may seem incongruous for the syndicate to harass his parents if he was making payments to the syndicate, as this meant that the syndicate were getting what they wanted (money from the applicant in the form of interest on the debt). He said that they harassed his parents because they wanted their money in one lump sum. He then said that if the debt was VND300 million, the interest is VND3 million a day, and to be clear this was an example. The applicant earlier said that goal of the operation was to trap him in debt. I find that this means that if the goal of the operation was to make the applicant have a debt to the syndicate, he would then owe them interest and the syndicate would make money from the interest. I do not accept that if the applicant was making payments on the interest, they would then harass his parents in the way described by the applicant so that he would pay the money in one lump sum. As the applicant has claimed he was making payments to the syndicate, it would not be in the syndicate’s interests to require the principal to be paid off to end the debt, which would stop the ongoing payments to them. The applicant also said that the reason they stopped harassing his parents was because his father had called the police, and that they had realised he hadn’t come home. The police however did not appear to take any action against the syndicate, which would have acted as a deterrent to the syndicate continuing to harass his parents, so it is not clear why the action of calling the police led, in part, to the syndicate stopping their harassing of his parents.
I note that the applicant’s evidence also changed in some respects. For example, he said that he didn’t put in his own money, but later said that he topped up the account to pay interest. He said that the syndicate would top up the account to trap him into debt and that they knew he had the ability to repay, but also earlier said that they stopped putting money into the account when he couldn’t pay the debt. The applicant also provided various figures about his debt to the syndicate, which ranged from $10,000 and then $30,000, and he changed the currency the account was denominated in from AUD to USD. In respect of the amounts and currency, he said that he was providing examples, although I had asked him to provide specific details about his involvement in the gambling syndicate. The applicant’s changing evidence in some key respects, in combination with my other concerns above, has further caused me to doubt his involvement in the syndicate, and whether he owes a debt to the syndicate, as claimed.
The applicant has been working in Australia since 2015, and based on his evidence, he has been sending money to Vietnam to service the debt to the syndicate. He said, from his perspective, he had paid the debt to the syndicate. He could not say how much money he still owed to the syndicate because of the interest rate. He said that the syndicate can charge whatever interest they want to, and that the original amount of debt was VND300 million, but they could say the debt is VND3 billion because they are thugs who act outside the law. While I accept betting syndicates may act outside the law, I do not accept that the applicant would continue to make payments to the syndicate when he considered he had paid off the debt and without knowing how much he was required to pay or trying to find out how much he needed to pay to end his involvement with them. This has caused me to further doubt the applicant’s claim to have been involved with the syndicate and to have a debt to them.
I do not accept that the applicant was involved in a betting syndicate as claimed, or that he owes any money to a syndicate in Vietnam. As I have discussed above, I have concerns about the applicant evidence in respect of his claim to have been involved in the syndicate. For instance, the applicant was not able to recall the name of the website he used to place bets through the syndicate, which is difficult to understand given the trouble he claims it has caused him. He omitted in his statutory declaration that he was charged interest on the debt and also the interest rate, thereby leading me to conclude that he added this detail at the hearing to exaggerate his claim. He was unable to specify how many people owed him money from bets they placed through him and provided a vague response. There was a difference between his evidence at hearing and in his statutory declaration about when he was involved in the syndicate. I was also not satisfied by his explanation as to why the syndicate would give him money, or why they would harass his parents when he was making interest payments to them from Australia. Given these concerns and my broader findings above, I am not satisfied that the applicant was involved in the syndicate as claimed, and accordingly I am not satisfied that he has a debt to a syndicate. As I do not accept that he was involved with a betting syndicate, I do not accept that he or his family were ever threatened by them. 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 from a betting syndicate or for any other reason.
Other matters
The applicant has claimed that he would like to remain in Australia so that he can support his son, and he is understandably concerned about his son’s development. I have considered whether the separation from his son engages Australia’s protection obligations.
I accept that the applicant would prefer to remain in Australia where he can spend time with his son. I accept that returning to Vietnam now would be difficult for him, including having to move away from his son. It would also be difficult for his son to be separated from his father, and the applicant has provided a number of photographs of himself with his son to the Tribunal as evidence of his close relationship with his son. However, his separation from his son and the resulting emotional situation would not be directed at him for any of the five refugee reasons in s 5J(1)(a), and I also do not accept that it amounts to serious harm. Further, separation from his son would be the consequence of removal. In SZRSN v MIAC, the Federal Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm. A consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[3] There is no act or omission on the part of another person in relation to his emotional situation in Vietnam and his being separated from his son if his son remains in Australia. Accordingly, I find that separation from his son in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of ‘significant harm’.[4] Accordingly, I find that the applicant’s separation from his son, which arises from the removal from Australia, would not amount to significant harm.
Ministerial intervention
[3] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [65].
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).

The applicant has requested that the Tribunal consider referring the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant submitted a letter to the Tribunal addressed to the Prime Minister outlining the applicant’s personal circumstances in relation to his son and why he would like to remain in Australia to be part of his son’s upbringing.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The applicant’s son is not an Australian citizen and does not appear to hold a permanent residence visa. He appears to hold a bridging visa in connection with his mother’s (the applicant’s ex-partner’s) application for a partner visa. At this point in time, it is speculative as to where the applicant’s son will reside in the long term. The Tribunal notes that the applicant can still make a request directly to the Minister.
Conclusion
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
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).
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).
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
The Tribunal affirms the decision not to grant the first named applicant a protection visa.
The Tribunal does not have jurisdiction in relation to the second named applicant.
Bryn Butler
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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