1903272 (Refugee)

[2024] AATA 2397

1903272 (Refugee) [2024] AATA 2397 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Anthony Stolar

CASE NUMBER:  1903272

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mia Bailey

DATE:10 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 10 April 2024 at 9:13am

CATCHWORDS

REFUGEE – protection visa – Vietnam – particular social group – victim of loan sharks – single mothers – attacks by money lenders – economic conditions – best interests of the Australian citizen child – referral for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225 at 258
Chan v MIEA (1989) CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZBQJ v MIMIA [2005] FCA 143
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection
SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 23 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 August 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.

3. The applicant, who was represented in relation to the review, appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

4. 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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
   s 36(2)(aa) of the Act.

7. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.

   [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

   Background and receiving country

8. The applicant, [an age]-year-old female, arrived in Australia [in] May 2018 on a [Visitor] visa.

9. The applicant provided a copy of the biodata and visa pages of her Vietnamese passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of Vietnam and there is no information before me to the contrary. I find that the applicant is a citizen of Vietnam, and that Vietnam is her receiving country for the purposes of assessing her claims for protection.

   Evidence before the delegate

10. According to the applicant’s protection visa application, she is from [District 1], Quang Tri Province. Her parents and [specified family members] reside in Vietnam. Between [March] 2011 and [February] 2014, she lived in [Country 1] for work. A copy of her [Country 1] visa, issued in Hanoi [in] March 2011, was provided as part of her application.

11. Regarding her protection claims, she stated in summary:

    i.She left Vietnam because of distrust of the judiciary and law enforcement and the poor system of government. Poverty and unemployment are ‘still big’. Due to these issues, she has been living in ‘harsh conditions’ and in mental distress and fear.

    ii.Many people in Vietnam have problems like her because they borrowed money and have been ‘hit, injured and killed’. She has received verbal threats of harm. She sought help in Vietnam, but nothing happened because they consider it a personal problem. If she returns, she will be caught by creditors and could be beaten, injured, or killed. 

    iii.Regarding harm or mistreatment that she thinks she will experience if she returns to Vietnam, she stated that she will live in harsh conditions and suffer discrimination as a woman.

12. The applicant was not invited to an interview with the delegate. Based on the information in the protection visa application, the delegate found the applicant’s claims to not satisfy the refugee or complementary protection criteria.  

    Evidence before the Tribunal

    Pre-hearing submissions

13. On 13 March 2024, the applicant’s representative provided a written submission, together with copies of an Australian passport and citizenship certificate and Queensland birth certificate for the applicant’s daughter. The following is a summary of relevant information from the submission:

    i.The applicant’s province of Quang Tri was heavily impacted by the Vietnam war and has a very high poverty rate.

    ii.After completing school to an Australian equivalent of [grade] high school, the applicant moved to [Country 1] for work as there was no work in Quang Tri province. She borrowed [amount] Vietnamese Dong (VND) from different gang members/loan sharks to pay for an agent to make the arrangements for her to work in [Country 1].

    iii.The wages in [Country 1] were much lower than she had been promised and there were periods when she was not employed. When she returned to Vietnam, she did not have enough money to repay her loan. Her father was sick; she had difficulty paying the loan instalments and the interest rate on the loan was very high. She received many threats from gang members who had used fake names when providing her with funds. She decided to come to Australia to escape the loan sharks.

    iv.The applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘loan shark borrower’. Country information is referenced from the UK Home Office and DFAT which supports the applicant’s claims to have received threats from gang members due to the outstanding loan and regarding the effectiveness of state protection.

    v.In [specified year], the applicant gave birth to a daughter, [Daughter A]. The father, [Mr A], is an Australian citizen. Following the birth of their daughter, the applicant learnt that [Mr A] is married and did not intend to divorce his wife. [Mr A], who resides in Melbourne, visits the applicant once per month and provides financial support. [Mr A’s] wife appears unaware of his relationship with the applicant.

    vi.Pursuant to the best interests of the child principle in the Convention on the Rights of the Child (CRC), the applicant should be granted a visa to allow her to remain in Australia with her Australian citizen daughter. [Mr A] has ‘no interest in bringing up the child’.

    Evidence provided at hearing

14. Regarding her protection visa application, the applicant stated that she received some help from friends to complete the forms. She read the application and agreed with the content.

15. Her parents, who worked as [farmers], continue to live in Quang Tri. Her father is unwell and no longer works. [One sibling] is currently living and working in Danang. [Another sibling] is married with 2 children, and lives in Quang Tri.

16. She met [Mr A] in Melbourne, and they became ‘committed’ in March 2021. He has [number] children from his marriage. Asked about the status of their relationship, she responded that he still loves her and supports her financially but is not prepared to leave his family. She has told her family in Vietnam about her daughter; they are happy for her.

17. After finishing school in Quang Tri, she moved to Ho Chi Minh City to look for work and then applied to work in [Country 1]. After returning from [Country 1] in February 2014, she lived in Ho Chi Minh City until departing for Australia in May 2018. During this period, she returned several times per year to Quang Tri to visit her family. While in Ho Chi Minh City, she shared accommodation with other people from her local area and worked as a labourer and in a [factory].

18. Asked how she arranged the working visa for [Country 1], she stated that she used a broker who charged [amount] VND. She had to pay this fee in full before being issued the visa. The broker referred her to a loan shark with whom they were affiliated as she didn’t have the money to pay the fee. Her parents borrowed [amount] VND from a bank to help her. She borrowed [amount] VND (being the remainder of the fee plus an additional [amount] VND to cover travel expenses) from the loan shark. The [amount] VND fee included a deposit of [amount] VND that she was told would be refunded when she returned to Vietnam.

19. She met with the loan shark in person, and they took copies of her family registration book and identity documents. Asked about the terms of the loan, she stated that the monthly repayments were [amount] VND. If she couldn’t make a monthly repayment, it was added to the principal. The repayments were to be deposited into a bank account while she was in [Country 1]. She did not earn as much in [Country 1], where she worked in a factory [duties described], as she was promised. She sent most of her earnings to her family in Vietnam. She estimated that she made repayments on the loan of about [amount] VND while in [Country 1].

20. When she returned to Ho Chi Minh City, the loan shark told her she had to repay [amount] VND. They threatened they would publish her information on social media if the loan was not repaid. Asked how she received these threats, she stated they sent her text messages and delivered the threats in person. She promised to repay them but didn’t have the money. Asked whether she repaid any of the outstanding amount, she stated that she couldn’t pay much given her income. They came every month to the place she was living and ‘bothered’ her. She made some small repayments such as [amount] VND or [amount] VND when she was able to, but they were not happy with this and wanted her to work for them as a prostitute or do ‘illegal things’. She cannot recall the total amount that she repaid. She confirmed that she never worked for the loan shark.

21. Asked whether her family members experienced any problems from the loan shark, she responded that they threatened that if she didn’t pay, they would harass her family. When asked for clarification of whether her family were in fact harassed, she stated they were not. Asked what has occurred since she left Vietnam in May 2018, she advised that neither she nor her family members in Vietnam have received any contact from the loan shark.

22. Asked whether she approached the authorities in Vietnam for help, she stated no, because they will not solve problems of this nature. I discussed with the applicant that in her protection visa application she stated that she did seek help, but nothing happened. Asked why she stated this in her protection visa application, the applicant responded that she did go to the authorities, but they were not able to resolve issues of this nature. I pointed out to the applicant that this is not consistent with her earlier response to the Tribunal, in which she clearly stated that she did not approach the authorities.

23. I discussed with the applicant that during the period of approximately 4 years that she resided in Ho Chi Minh City after returning from [Country 1], the loan shark did not take any action against her or her family despite her not making any substantial repayments on the outstanding loan of [amount] VND. She responded that they kept coming around and harassing her. She told them that she needed more time as her father was unwell and paid them what she could. Sometimes they would stop her on the road on her way from work and touch and ‘fondle’ her. 

24. Asked whether there was any other reason she felt unable to return to Vietnam, she stated that it was because of the loan, her father’s medical condition and the financial situation in Vietnam. She now has a young child; in Vietnam, people would look down on her and not respect her because she is unmarried.

25. I noted that in her protection visa application, she claimed to fear harm due to a distrust of judiciary and law enforcement, poor system of government, poverty and unemployment and her status as a woman. Asked whether she continues to fear harm for these reasons, she stated that she does. I asked the applicant how these issues had impacted her personally in Vietnam, including whether she had experienced discrimination as a woman. She responded that when she returned from [Country 1] she was in love with a man from Quang Tri and fell pregnant. She and her parents were looked down on by persons in her community due to her being unmarried and pregnant. This discrimination, together with the outstanding loan, cause her such stress that she suffered a miscarriage. She feels that she will not be respected in Vietnam and doesn’t trust anyone.

26. I discussed with the applicant that the Vietnamese government ‘legalised’ single motherhood in 2000. However, I accept there remains a degree of societal discrimination toward unmarried mothers. I explained that I would need to consider whether any societal discrimination she may experience as a single mother would amount to serious or significant harm. She responded that, if she returns to Vietnam, she will not have a job and the loan shark would seek her out regarding the outstanding loan. I acknowledged that she may experience financial difficulties, but I may not accept that this would amount to serious or significant harm.

27. I discussed with the applicant several concerns regarding her loan shark claims, namely that over a period of 4 years after her return from [Country 1] she and her family members experienced no harm from the loan shark and there has been no contact from the loan shark since she left Vietnam in 2018. This may cause me to have concerns about the credibility of these claims or to doubt that the loan shark had any intention to harm her. She responded that if she returns, she doesn’t know what she would do and may have to do something ‘extreme’.

28. I discussed with the applicant that her claims regarding distrust of the judiciary and law enforcement, poor system of government and poverty and unemployment are unlikely to give rise to protection obligations because claims of this nature generally do not satisfy the refugee or complementary protection criteria.

29. I discussed with the applicant the submissions regarding the best interests of the child in the context of possible separation from her daughter. I explained that this does not form part of the relevant protection obligations criteria that I will be assessing and, if she wished to pursue this, the appropriate pathway is via a request to the Department for Ministerial intervention.

30. The applicant asked whether her daughter would have to return to Vietnam with her if she were not granted a protection visa. I explained that this would be a matter for her to decide. While her daughter is an Australian citizen and has the right to remain in Australia, my understanding is that under Vietnamese nationality laws, her daughter would be entitled to Vietnamese citizenship.[2]  

    [2] The Sydney Morning Herald, Vietnam to allow dual nationality, 14 November 2008

31. The representative made oral submissions regarding country information concerning the prevalence of borrowing from loan sharks and corruption in the Vietnamese judicial system. The representative requested that if the Tribunal decides to affirm, consideration be given to referring the case for Ministerial intervention. The representative submitted that [Mr A] is not going to look after the applicant’s daughter if she returns to Vietnam.

    Assessment

    Factual findings

32. In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which involves an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[3] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

    [3] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

33. I accept the following aspects of the applicant’s claims:

    i.She is from Quang Tri Province.

    ii.Her parents worked as [farmers]. Her father is no longer able to work due to illness.

    iii.She moved to Ho Chi Minh City after completing high school due to a lack of employment opportunities in Quang Tri.

    iv.She resided in [Country 1] on a working visa between March 2011 and February 2014.

    v.After returning from [Country 1], she resided primarily in Ho Chi Minh City and worked in a [factory] and as a labourer.

    vi.She fell pregnant while unmarried after returning from [Country 1] and suffered a miscarriage.

    vii.She has an Australian citizen daughter, born in [year], to a married Australian citizen father who has indicated that he is unwilling to marry the applicant or raise their daughter.  

    Loan shark claims

34. The applicant claims that she borrowed an amount of [amount] VND (approx. [amount] AUD) from ‘loan shark’ gang members to fund her [Country 1] working visa. She claims that, despite making some repayments while in [Country 1], she was told she owed [amount] VND (approx. [amount] AUD) when she returned to Vietnam in 2014.

1. According to DFAT, illegal moneylending is widespread in Vietnam and people commonly borrow money to fund migration.[6] A World Bank study found that approximately 79 per cent of people in Vietnam do not have access to formal financial services.[7] Trade union surveys indicated that over a third of Vietnamese workers are destitute, have debts and have borrowed from loan sharks.[8] People can borrow money from illegal moneylenders with very little collateral and interest rates are not usually written on loan papers making it hard for people to keep track of how much they owe and difficult to prove the loan or interest rate agreed as it is not documented. Interest rates are often extortionate and the loanee can be required to repay many times the value of the money they initially borrowed.[9]

   [6] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, pp 25 - 26

   [7] UK Home Office, Country Policy and Information Note: Fear of illegal moneylenders, Vietnam, updated 31 January 2024

   [8] UK Home Office, Country Policy and Information Note: Fear of illegal moneylenders, Vietnam, updated 31 January 2024

   [9] UK Home Office, Country Policy and Information Note: Fear of illegal moneylenders, Vietnam, updated 31 January 2024

2. DFAT reports that there is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats, or violence for family members’ unpaid debts.[10]

   [10] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, pp 25 - 26

3. According to advice provided by the Vietnamese authorities to a 2019 UK Fact Finding Mission, late payment of loans could result in lenders hiring external gangs to carry out debt collection through the use of threats, ‘psychological terrorization’ such as throwing dirt, sending funeral wreaths/coffins, destroying property, injury or humiliation and causing trouble at residences or the work place.[11] Media reports indicate that lenders’ activities of harassment included assault; coming to the debtors house to collect; cursing and threatening relatives; demanding retribution from relatives; splashing paint on the house; contacting employers and threatening defamation; physical harm and disturbing business operations; kidnapping and torture.[12]

   [11] UK Home Office, Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1 March 2019, 9 September 2019

   [12] Tuoi Tre News, Women assaulted at home in Hanoi over conflict with debtor, 19 January 2021; Vietnam.VN, Arrest the loan shark group, splash paint on the debtor's house, 16 August 2023; Viet Nam News, Efforts underway to wean workers away from loan sharks, 30 June 2023; Vietnam Plus, HCM City ramps up efforts to crack down on loan sharks, 24 May 2023; The Investor, Seafood association urges crackdown on loan sharks, 26 July 2022; Tuoi Tre News, Three arrested for kidnapping debtor, demanding ransom in north-central Vietnam, 29 December 2020

4. An article by the International Institute for Asian Studies refers to the tactics of male moneylenders who operate in gangs which are commonly referred to as ‘giang hồ’. Some of these gangs use pawnshops and rental and wholesale businesses as fronts for their operations. They lend money to a range of borrowers whom they recruit through social networks and aggressive marketing. For small unsecured loans, they do not require collateral, trust, or a prior connection with the borrower. Some ask for a photocopy of the ID or household certificate. In line with a reputation for ruthlessness, giang hồ lenders use brutal recovery tactics. Their motto is ‘if I lend money, I can always get it back’. Their methods include charging penalties and compound interest, insults and beatings, making a fuss at borrowers’ homes, harassing their relatives, disclosing the debt to a spouse, posting their pictures and personal information in their neighbourhood, and splashing paint and fermented shrimp sauce at their front door.[13]

   [13] International Institute for Asian Studies, The gendered structure of moneylending in Vietnam, The Newsletter 88, Spring 2021

5. I acknowledge that the applicant’s claims of borrowing money from a loan shark to fund her travel and work in [Country 1] generally accord with the above country. I find it plausible that the applicant and/or her parents borrowed money in connection with her travel to [Country 1] in 2011. However, for the reasons below I do not accept her claims to have been subjected to harassment and threats from loan shark gang members between 2014 and 2018 due to an outstanding loan as credible.

6. I do not find it credible that loan shark gang members would take no action against the applicant or her family members over a period of 4 years while she resided in Ho Chi Minh City, other than regularly demanding payment from the applicant, in circumstances where the outstanding loan was a sizeable amount of approximately [amount] VND and the applicant was only able to make some small repayments of around [amount range] VND. The applicant claims that gang members pressured her to work for them, including by prostituting herself, however she never did and there were no repercussions.

7. As outlined above, the country information indicates that male giang ho lenders have a reputation for ruthlessness and use a range of recovery tactics to ensure the repayment of outstanding loans. I find the lack of any action over a period of 4 years to significantly undermine the credibility of these claims. I find the lack of any contact from the loan shark with the applicant or her family in Vietnam following her departure in May 2018, in circumstances where the majority of the debt remained outstanding, to further undermine the credibility of these claims. 

8. I find that the applicant has provided inconsistent evidence regarding her contact with the authorities in Vietnam regarding the loan shark threats. As outlined above, she stated in her protection visa application that she did seek help from the authorities in Vietnam, whereas in her oral evidence to the Tribunal she initially stated she did not. When the inconsistency was raised with her, she amended her evidence to state that she did seek assistance. While I acknowledge that there has been a considerable lapse of time since she left Vietnam, I am not satisfied that this explains inconsistencies of this nature. I find these inconsistencies to undermine the credibility of her claims relating to threats from a loan shark.

9. Considering the above, I do not accept that the applicant had an outstanding debt of approximately [amount] VND to a loan shark when she returned to Vietnam in early 2014. I do not accept that she was subjected to any harassment or threats of harm from loan shark gang members in the period between February 2014 and May 2018. I find that the applicant has fabricated these claims for the purpose of strengthening her claims for protection.

10. I therefore find that there is not a real chance that the applicant would face harm from loan sharks if she were to return to Vietnam and does not have a well-founded fear of persecution for this reason. I note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[14] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm from loan sharks as a necessary and foreseeable consequence of returning to Vietnam.

    Discrimination as a woman and single mother

    [14] MIAC v SZQRB (2013) 210 FCR 505

11. The applicant has claimed that she fears discrimination as a woman and specifically as an unmarried or single mother. She claims that this would involve members of society looking down on her and not respecting her because she is unmarried.

12. Discrimination against women is banned under article 26 of the Vietnamese Constitution. The most recent UN Development Programme Gender Equality Index (2019) ranked Vietnam 65^th (with 1 being the most equal) out of 162 countries. The International Labour Organization notes that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.[15]

    [15] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 21

13. DFAT reports that Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household. In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. Suitable rental accommodation for single women may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.[16]

    [16] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 23

14. Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance. DFAT assesses that while single women do not face official discrimination, they do face a moderate risk of societal discrimination.[17]

    [17] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 23

15. Single motherhood was ‘legalised’ in Vietnam in June 2000 with an amendment to existing family law passed through the National Assembly. This amendment legislated against discrimination towards children born outside of marriage. Asian Political News reported that unmarried mothers would ‘no longer have to hide their faces in public because single motherhood has finally been legalized in the country’.[18] 

    [18] Asian Political News, Single motherhood legalized in Vietnam, 12 June 2000

16. Sources indicate that, in practice, single mothers are still likely to experience social stigma and feelings of shame. According to a 2004 UNICEF report, Vietnamese single mothers ‘…hesitate to register their children out of embarrassment or because they mistakenly believe that only children of married parents can be registered’.[19] A 2009 UNICEF report states that single mothers in Vietnam may face discrimination within their communities due to conservative cultures and religious views.[20] A 2004 article comments that ‘in rural Vietnam…women who have no husband but have children will be condemned and denigrated.’[21]

    [19] UNAIDS Vietnam website, Situation Analysis of Institutional and Alternative Care Programmes in Vietnam, January 2004

    [20] UNICEF Vietnam website, Adoption from Vietnam – Findings and Recommendations of an Assessment, November 2009

    [21] Disability World, Women of Vietnam…Disability in Motion, Issue 22, January – March 2004

17. Sources generally support a link between single motherhood and poverty. For example, a joint report between the Vietnamese Government and UN Development Program focusing on Ha Tinh (North) and Dak Lak (South) provinces states that single mothers face a particular set of barriers in gaining access to land and other means of self-sufficiency. The report found that single-mother households were the poorest in the case study areas. [22]

    [22] Vietnam Ministry of Natural Resources and Environment, The Environment, Gender, Migration and the Poor, Vietnam Ministry of Natural Resources and Environment, 6 November 2008

18. Considering the above, I accept that women in Vietnam, particularly those from lower socio-economic backgrounds, are subject to a level of discrimination in regard to employment opportunities and conditions. I accept that single women in Vietnam face a degree of societal discrimination and that single mothers, particularly those in rural areas such as the applicant’s home area, are likely to experience social stigma and negative attitudes. I accept that the applicant previously experienced social stigma in Vietnam while pregnant and unmarried.

19. I have considered the applicant’s return as a single mother (on the basis of her returning with her daughter) to Quang Tri, where she grew up and where her parents continue to reside. Given the applicant’s evidence that her parents have expressed happiness at the birth of her daughter, I find that they would be supportive of the applicant and her daughter if they were to return and that the applicant could reside with her parents in the family home. However, I accept that the applicant would face a real chance of societal discrimination, in the form of being subjected to negative comments and attitudes, if she returns to Quang Tri. I find that this does not amount to serious harm for the purposes of s 5J(4)(b), examples of which are set out in s 5J(5). I find it would not involve a threat to her life or liberty or significant physical harassment or ill-treatment. I accept that the applicant previously suffered a miscarriage while unmarried. However, based on the available evidence, I am not satisfied that she miscarried for reasons of the social stigma she experienced.

20. I accept that the social stigma she is likely to experience on return as a single mother may cause her a degree of mental distress and acknowledge that serious harm may encompass mental harm. However, it must be of a serious nature, with examples being mental harm caused by the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection.[23] I find that any mental distress that the applicant may experience due to social stigma as a single mother would not amount to serious harm.

    [23] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25]

21. While I accept that the applicant is likely to experience financial challenges and economic disadvantage due to limited employment opportunities, I am not satisfied that she would experience significant economic hardship that threatens her capacity to subsist; denial of access to basic services that would threaten her capacity to subsist or denial of the capacity to earn a livelihood of any kind that would threaten her capacity to subsist. The courts have found the ‘capacity to subsist’ to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[24] As above, I find that the applicant would be able to reside with her parents and, given her level of education and work experience, I find that she would be able to obtain employment, whether in the formal or informal sector.  

    [24] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

22. I find that there is not a real chance that the applicant would be persecuted if she returns to Quang Tri and, as such, does not have a well-founded fear of persecution for reasons of being a woman, a single woman and/or a single mother.

23. For the purposes of the complementary protection criterion in s 36(2)(aa), ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. For the same reasons above, I find that there is a real risk that the applicant will experience societal discrimination in the form of being subjected to negative comments and attitudes and will face financial difficulty due to limited employment opportunities if she returns to Quang Tri. However, I find this to not amount to any of the types of significant harm defined in s 36(2A).

24. The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict severe physical or mental pain or suffering or extreme humiliation which is unreasonable. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[25] I have accepted that the applicant previously experienced social stigma in Vietnam while pregnant and unmarried and suffered a miscarriage. However, I do not accept that members of her community who expressed negative comments or attitudes intended to cause the applicant to miscarry. I find that any societal discrimination or financial difficulty the applicant experiences on return would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.

    [25] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40])

25. I find there not to be a real risk of the applicant suffering significant harm for these reasons as a consequence of her return to Vietnam.  

    Country conditions in Vietnam

26. The applicant claims to fear harm in Vietnam due to distrust of the judiciary and law enforcement, poor system of government, and poverty and unemployment. The applicant did not raise any claims that she had been personally targeted by the Vietnamese authorities and I find that no such claims arise on the facts.

27. Country information generally supports the applicant’s concerns regarding distrust of the judiciary and law enforcement. DFAT reports that despite significant government efforts to control corruption, it remains ‘rampant’ according to German research foundation Bertelsmann Stiftung’s 2020 report on Vietnam. A 2019 Transparency International report found that 65 per cent of Vietnamese had paid a bribe, or ‘given a gift or done a favour’ for a teacher, health worker, judicial, police or other government official in the preceding 12 months. GAN Integrity, a Danish risk consultancy, notes ‘high’ levels of corruption in the judiciary, police, land and tax services.[26]

    [26] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 8

28. Vietnam is a one-party communist state with Communist Party of Vietnam members holding all senior government and military positions.[27] Vietnam has experienced rapid economic growth over the past 30 years and aims to become a high-income nation by 2045.[28] According to World Bank data, between 2002 and 2018 more than 45 million people were lifted out of poverty. In that period, the poverty rate fell from over 70 per cent to below 6 per cent. The majority of the poor are from ethnic minority groups. The economy continues to grow and has strong growth potential, with 2.9 per cent growth in 2020 despite the COVID pandemic. This is reflected in a growing middle class and increasing urbanisation.[29]

    [27] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 11

    [28] The World Bank, World Bank In Vietnam - Overview – Context, 27 April 2020; The World Bank, Vibrant Vietnam: Forging the Foundation of a High-Income Economy - Main Report, May 2020

    [29] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 7

1. The official unemployment rate is about 2.4 per cent according to International Labour Organization data. However, the rate of informal employment is very high. According to figures quoted by the World Bank, 76 per cent of all workers are in the informal sector. The COVID pandemic was disruptive to employment with a 1.2 per cent increase in unemployment in 2020. Women and low-skilled workers were particularly affected by the pandemic with many losing their jobs.[30]

   [30] Department of Foreign Affairs and Trade, Country Information Report Vietnam, January 2022, p 8

2. As discussed with the applicant, claims relating to general country conditions in Vietnam do not generally amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[31]

   [31] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

3. I find that the harm feared by the applicant due to general conditions relating to the system of government, the judiciary and law enforcement, and the economy to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and
   s 5J(4)(c); that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct; are not satisfied. I therefore find that the applicant does not have a well-founded fear of persecution in Vietnam for these reasons. 

4. For the purposes of the complementary protection criterion, I find that the harm feared by the applicant due to general conditions relating to the system of government, the judiciary and law enforcement, and the economy to not amount to any of the types of significant harm defined in s 36(2A). Based on the available evidence I find that there is not a real risk that, as a necessary and foreseeable consequence of her return to Vietnam, the applicant will be arbitrarily deprived of her life; the death penalty will be carried out on her; or that she will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment due to general conditions relating to the system of government, the judiciary and law enforcement, or the economy.

   Conclusions

5. I have found above that the applicant does not have a well-founded fear of persecution for any of the reasons claimed and is therefore not a refugee as defined in s 5H(1) of the Act. I have also found that there is not a real risk that she would suffer significant harm as a consequence of returning to Vietnam for any of the reasons claimed and therefore does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. I am satisfied that no other protection claims arise on the accepted facts.

6. 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) or 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).

   Referral for Ministerial intervention

7. I have considered the applicant’s request for the Tribunal to refer her case to the Minister under s 417 of the Act for consideration of their personal, non-compellable, power to substitute a decision of the Tribunal for one that is more favourable to the applicant if it is in the public interest to do so.

8. I have considered the circumstances of this case with respect to the Minister’s guidelines relating to the consideration and exercise of their power under s 417 of the Act. I acknowledge that the guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances. For the reasons below, I find it appropriate to refer this case to the Minister.

9. I consider there to be strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen, being the applicant’s minor daughter, [Daughter A]. The applicant has submitted that [Mr A] does not wish to bring up their daughter, which I acknowledge is credible given that he is married with [number] other children and his family are unaware of his relationship with the applicant.

10. On that basis, [Daughter A] is likely to return to Vietnam with her mother. As discussed above, I accept that the applicant, as a single mother, and [Daughter A], as a child of a single mother, are likely to experience social stigma and financial difficulty. While I have found this to not amount to the level of harm required to satisfy the refugee or complementary protection criteria, I consider that it may result in serious, ongoing, and irreversible harm and continuing hardship to [Daughter A]. I also note that [Daughter A] would be moving to a country in which she has never resided and, as a young child, would not have access to the same level of supports and educational opportunities as she would in Australia.

11. In the alternative, if [Daughter A] were able to remain in Australia and be cared for by her father or someone else, I consider that the separation from her mother at a very young age would likely result in serious, ongoing, and irreversible harm and continuing hardship to [Daughter A].

12. I also note that this case raises circumstances that may bring Australia’s obligations under the CRC into consideration, including the best interests of the child. The best interests of [Daughter A] would appear to be served by the grant of a visa to the applicant which would allow [Daughter A] to remain in Australia, together with her mother, and have access to the educational and other opportunities available in Australia.

    DECISION

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

    Mia Bailey
    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.

    …