1906416 (Refugee)

1906416 (Refugee) [2024] AATA 2941 (3 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Dr Ngo Tung Bao (MARN: 0006620)
CASE NUMBER: 1906416

COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Scott Collins
DATE:3 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 July 2024 at 10:09am
CATCHWORDS
REFUGEE – protection visa – Vietnam – victim of loan shark – criminal gang – threats of violence – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 on 18 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam applied for the visa on 19 October 2018. The delegate refused to grant the visa on the basis that basis that that the applicant was not a person to whom Australia owes protection obligations as outlined in s 36(2)(a) and s 36(2)(aa) of the Act.
In his response to the pre-hearing information form 10 June 2024, the applicant indicated that he wanted his application to be dealt with on the papers and without a hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in Can Loc, Ha Tinh Province in Vietnam in [specified year]. According to his application for a protection visa:
- the applicant is married and has a [child], and his wife and [child] live in [Country 1];
- he lived in Can Loc until 2008;
- he lived in refugee accommodation in [Country 1] from 2001 to 2008;
- from 2008 until his arrival in Australia, he lived in Ha Thin City, Vietnam
- his occupation was businessman;
- he completed high school;
- he was assisted in completing the application by an immigration agent; and,
- he did not speak English.
His claim for protection is set out in a statutory declaration accompanying the application form:
“THAT In 2008 I commenced investing in [a] business.
THAT: I planned to build [the business] with the cost of 15 billion Vietnamese dongs or about AUD900000. Of which, I had the capital of 10 billion Vietnamese dongs. The remainder (5 billion Vietnamese dongs) I had to borrow from the bank (3 billion Vietnamese dongs and from the loan sharks (2 million Vietnamese dongs).
THAT: In the first few years my [business] was relatively fine and I was able to repay instalments to the bank and to the loan sharks. But it has not been busy in the past few years. As a result, I have not been able to repay the loan sharks as they have increased significantly by high interest rate.
THAT: Consequently the loan sharks hired the gangs to collect the debts by threatening me. I told them I would travel to Australia to borrow money from friends and return to Vietnam in a month time to repay them. I understood that I would not be able to borrow money but that was the only solution to avoid them.
THAT: Now that my relatives in Vietnam told me that the gangs came to look for me and threatened to harm me if I were to return home.
THAT: I am holding well fear of return to my home country for the time being.
THAT: I know the gangs in Vietnam, they would do any things for the lenders to collect their money back. At the same time people cannot just move to live in another place as they can be located easily. In addition, they have to apply for a permit from the local authorities where they live and where they come. The authorities cannot and will not protect me. By contrast they may be on the side with the gangs who pay them. It is worthwhile noting that Vietnam is one of the rare countries in the world to demand their citizens to register family books to reside.
There is no further, more up-to-date, relevant information.
Loan Sharks
This is what is said in the DFAT Country Report for Vietnam (2022) about loan shark activities in Vietnam:
3.102     Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
3.103     Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
3.104     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. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place.
3.105     Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
3.106     While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
3.107     DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
In the same report, there are these comments about the effectiveness of the Vietnamese police:
5.3 In-country sources told DFAT police tend to react to crime rather than proactively investigating crime. That is, police often rely on catching people in the act of committing crime rather than investigating or using circumstantial evidence. This is not always the case, however, and in-country sources told DFAT that sometimes police take very strong and effective action to investigate crime, but this is not a consistent experience. Political crimes may receive more police attention than non-political crimes.
According to a news report in 2018,[1] police officers in the northern-central province of Thanh Hoa arrested an unlicensed group of creditors who worked together under the company name Nam Long Financial Group. The arrests prompted officials of various provinces in Vietnam to meet and discuss the case and other loan sharks. The deputy director of the Ho Chi Minh City Public Security Department estimated that on average, police officers in the city dealt with four cases related to loan sharks per month. He said:
“We have to act because it is near Lunar New Year and loan sharks are becoming more brazen than ever. From simple acts of harassment, such as splashing smelly paint on walls, to outright violence and torture, loan sharks will use all tricks to collect their dues.”
[1] ‘Arrests raise loan sharks higher on social agenda’, Vietnam Investment Review, December 12, 2018
In the same article, in response to these recent arrests, the Prime Minister said at a December 3 cabinet meeting, that Vietnamese authorities must focus on the loan shark problem as Lunar New Year approaches. He is reported to have said:
“This is a serious issue that requires close attention and immediate reaction from the local authorities.”
At Para 5.3.2 of UK Home Office Country Policy and Information Note ‘ Vietnam: Fear of Illegal Moneylenders’, the Ministry of Public Security (MPS) told the UK HO FFM in 2019 that:
‘Because of the serious nature of this crime [Black Credit] the government directs MPS to control this crime and others relating to it.’
The report goes on to list some successful police operations which disrupted loan shark activities and leading to arrests and prosecutions up to publication of the report in 2022.
There are more recent news reports of similar police operations.[2]
[2] ‘Trial of Chinese-led $800M loan shark ring in Vietnam delayed’, VN Express March 23, 2024; HCM City ramps up efforts to crack down on loan sharks’, Vietnam+, May 24, 2023
The Tribunal is satisfied that there are laws in Vietnam which deal with illegal money lending and also their tactics to compel payment, such as laws prohibiting threats, violence and harassment.
Findings
In this case, the applicant claims that he fears threats of violence, actual violence, and harassment from loan shark gangs if he returned to Vietnam. The Tribunal accepts that this would amount to serious harm within the meaning of sections 5J(4) and (5) of the Act.
However, the Tribunal finds that it is not persecution for any of the reasons set out in 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion). It might be argued that the applicant is member of a particular social group, ‘persons who use loan sharks’. However, the use of loan sharks in Vietnam is widespread. The Tribunal finds that there are no common characteristics shared by persons who use loan sharks, as required by section 5L of the Act, other than that may be subject to threats and violence and, under s 5L, the persecution itself cannot be the common characteristic. Therefore, the Tribunal concludes that the serious harm alleged to be feared by the applicant is not persecution
Further, there is no evidence that there is a real chance that the applicant would in fact experience any harm now or in the foreseeable future if he returned to Vietnam. The loans appear to have been obtained in 2008. There is no evidence at all as to whether, in the last 15 years, the loan shark in this case would still be interested in the debt, or looking for him, or whether they are in business, arrested and imprisoned, or even alive. As this is a forward-looking process, there is no evidence at all upon which the Tribunal could be satisfied that there is a real chance of serious harm, now or in the foreseeable future, if the applicant returned to Vietnam.
Thirdly, there effective state protection available to the applicant. There is a pattern of substantial police activity directed at loan sharks. The issue has attracted the attention of very senior Vietnamese officials as a law enforcement issue. There are laws which can be used to investigate and punish loan sharks. Within the meaning of section 5L of the Act, the Tribunal finds that the applicant could access the protection, the protection would be durable; and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution and so the Tribunal is not satisfied that he is not entitled to protection under s 36(2)(a) of the Act.
COMPLE MENTARY PROTECTION
The Tribunal has found that there is no real chance of the applicant experiencing serious harm if he returned to Malaysia under the section 36(2) (a) refugee criteria. The test in the case of the complementary protection criterion in s 36(2) (aa), real chance of significant harm, is effectively the same as the ‘real chance’ test. Having found that there is no real chance of serious harm, the Tribunal finds there is no real risk of the applicant experiencing significant harm if her were returned to Malaysia.
CONCLUSION
For the reasons given above, the Tribunal is 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), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is 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 applicant a protection visa.
Scott Collins
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.
…

‘Efforts underway to wean workers away from loan sharks; June 30, 2023
‘Vietnam police arrest over 190 suspects in loan shark ring allegedly run by Chinese’, Toui Trey News, January 13, 2024;
‘Vietnam Police arrest over hundreds of suspects in loan shark ring allegedly run by Chinese’ Newswire, January 20, 2024; 22.

[2024] AATA 2941

3 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies