1907357 (Refugee)

[2021] AATA 680

1907357 (Refugee) [2021] AATA 680 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907357

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:James Silva

DATE:12 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2021 at 4:39pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – indebtedness to loan shark – late claim not raised earlier – delay in seeking protection – no documentary evidence – inconsistent account of past experiences – general political, human rights or environmental conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old man who claims to be a Vietnamese citizen.

2. He arrived in Australia [in] March 2018, as the holder of a [transit] visa, valid [until later in] March 2018. On 12 August 2018, he made a valid application for a protection (class XA) visa. On 22 February 2019, the delegate of the Minister for Immigration (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 11 February 2021.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claimed in his protection visa application to fear harm in Vietnam because there is ‘no freedom, equality, human rights, religious freedom [and there is] a lots of environment disaster and corruption’. [sic] At hearing, he told the Tribunal that he fears harm from illegal moneylenders, for the repayment of a loan he took out for a now-defunct business.

   Background

8. The applicant is a [age] year old man from Quang Binh, in central Vietnam. He told the Tribunal that he is from a rural area.

9. The protection visa application contains little background information. It states that the applicant attended high school until 1988 (age [age]), and that he has never held employment. At hearing, he said that he completed a university degree in [discipline]. He said that he owned and operated a [specified] business, together with two brothers. They wound up the company in about 2016, and from that time he worked on other [specified] projects, including as a supervisor. His brothers currently work as [Occupation 1].

10. On the protection visa application, the applicant gave his marital status as ‘divorced’. At hearing, he clarified that he is married but separated. His wife is living in [Country 1] as a student. He also mentioned that he has two children.

11. The applicant holds a Vietnamese passport issued [in] 2017, valid for ten years. As noted above, he came to Australia on a transit visa. At hearing, he said that he had been planning to visit [Country 2], but during his transit stop in Australia he met some friends who suggested he stay here.

12. The applicant said that he lodged a protection visa application in August 2018 in order to have a legal basis to stay in Australia. He obtained a bridging visa in association with the protection visa, but this was cancelled after he broke Australian law. This resulted in his immigration detention. He did not suggest any link between his breach of Australian law and his protection claims, and the Tribunal did not enquire further into the circumstances of his immigration detention.

    Evidence

13. The Tribunal has before it the applicant’s protection visa application, completed online; the delegate’s protection visa decision record (‘the delegate’s decision’) of 22 February 2019; and the applicant’s application for review form, to which the applicant attached a copy of the delegate’s decision.

14. The Department did not invite the applicant to an interview. The decision mentions that his claims were brief, and that he had not provided any further information.

15. The applicant appeared before the Tribunal on 11 February 2021, to give evidence and present arguments. The hearing was held via video conference, with the applicant [in] Immigration Detention Centre, and the member in the Tribunal’s Sydney office. An interpreter in the Vietnamese and English languages assisted. 

16. The applicant’s representative and authorised recipient is [Mr A], a registered migration agent. [Mr A] accepted the hearing invitation on the applicant’s behalf and provided his mobile telephone number but did not participate at the hearing or make submissions.

    Receiving country

17. The applicant claims that he is a national of Vietnam. He holds a Vietnamese passport, speaks Vietnamese and is familiar with that country. The Tribunal accepts he is a national of Vietnam, which is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Claim(s) presented in the protection visa application

18. The protection visa application form briefly states that the applicant fears harm in Vietnam as there is ‘no freedom, equality, human rights, religious freedom where had a lots of environmental disaster and corruption’ [sic] The same phrase appears, with minor variations, in response to the questions as to why the applicant left Vietnam; why he experienced harm in Vietnam; what he fears will happen to him on his return there; and why such harm would occur. At hearing, the Tribunal read to the applicant the phrase: ‘no freedom, equality, […]’. He acknowledged these words briefly, without elaboration, before proceeding to describe his new claim (based on indebtedness to a loan shark).

19. The applicant said that a ‘lawyer’ helped him to complete the form. As the Tribunal noted, the form states the applicant received no assistance. Given the applicant’s lack of English skills in August 2018, when he lodged the application, the Tribunal accepts that someone completed the form on the applicant’s behalf, and that this person failed to declare their role. The identity of this person is unknown, and it is unclear whether this person was, or held themselves out to be, a lawyer.  

20. The Tribunal understands the applicant’s written claims as a reference to Vietnam’s general political and human rights, its governance and its physical environment. The applicant showed little interest in these matters at hearing, but instead presented his claimed indebtedness as his only reason for seeking protection. Nonetheless, he did not disagree with the words contained in the phrase or expressly disavow any claims. Given that he appears to have had minimal contact with his representative, the Tribunal considers it prudent to address this when assessing his claims against the refugee criterion and for complementary protection.

    Claim presented at hearing: Indebtedness to loan shark

21. The applicant told the Tribunal that an illegal moneylender (‘loan shark’) will harm him if he returns to Vietnam, as he (the applicant) has a large outstanding debt which he will be unable to service.

22. During the discussion, the applicant revealed some information about his business and financial situation, and his dealings with the loan shark, in a somewhat piecemeal manner.

    §   In 2013, he borrowed some $A 30,000[1] from a bank., to invest in his [specified] business. The loan is partly paid off. The bank holds a mortgage over the family home in rural Quang Binh but has not formally foreclosed the loan. The property is currently empty and for sale. The applicant was not optimistic about a sale or good price, as it is in a rural area.

    §   In around 2014, the applicant needed to raise more money, to meet the business’ ongoing expenses such as [materials], staff salaries and project costs. He had no collateral to offer, so he turned to a loan shark. He said that it was easy to find a loan shark; there were many advertisements posted on lamp posts, etc. He took out the loan personally, without the involvement of his business partner brothers.

    §   He borrowed some $A 60,000, delivered in cash. There was no written contract, but they took a copy of his identity papers and had him sign a paper. The interest rate was about 300 per cent annually. Agents came by to collect the interest every ten days. There was no fixed term of the loan. Debtors simply had to continue meeting the interest repayments.

    §   The family-owned [business] continued to struggle. In 2016, he sold all of the equipment, [specified]. After the business folded, he initially stayed home. Later, he worked casually as a supervisor [in specified locations] or in similar positions.

    §   The applicant said that he kept the proceeds from the sale of the equipment, to keep up interest payments to the loan shark, from 2016 until his departure from Vietnam in early 2018. This way, he continued to maintain their trust and (implicitly) avoid problems, even though he was in fact bankrupt. The Tribunal noted that he had not provided collateral for the loan and wondered whether the loan shark or his agents had noticed the closure of his business, the sale of the equipment or his bankruptcy. In response, the applicant said that the agents knew he was still working in the [specified] sector. He implied that they were not worried about the details, so long as the interest payments continued.

    §   The applicant said that he has continued to repay the loan since coming to Australia; he believes that he currently owes the loan shark some $A 40,000. He said that he does not have any documentation to show that he has been sending money to Vietnam for this purpose.

    [1] The applicant referred to Australian dollar equivalents, rather than Vietnamese dong.

23. At several points during the hearing, the applicant alluded to problems that he and his family experienced at the hands of the loan sharks. When asked directly whether the loan sharks (or their debt collecting agents) harmed him in Vietnam, the applicant replied that on those occasions when he had been unable to pay interest, the agents came to his home and drank alcohol outside. The implication was that they had a menacing presence, to put pressure on him. In earlier evidence, when explaining his wife’s presence in [Country 1], he claimed that the couple separated and she went to [Country 1] in response to harassment from the loan shark’s agents. He said that they had come looking for the couple (even though his wife had nothing to do with the loan), and they had damaged property.

24. The Tribunal asked the applicant how he funded his passport and travel to Australia, as his earlier evidence had suggested he entered Australia on a return ticket to Europe (although this was not entirely clear). He replied briefly that, after making the interest repayments, he had still managed to put some additional money aside.

25. As discussed at hearing, general country information points to the prevalence of illegal moneylending in Vietnam, as well as official attempts to combat it. The Tribunal drew, among other things, on the Department of Foreign Affairs and Trade’s most recent country information report on Vietnam, from December 2019. This gives a succinct overview, at paragraph 2.45.

    Illegal moneylending is widespread in Vietnam, largely due to the complicated nature of accessing bank loans. Interest rates are often extortionate. A 2018 UK Home Office report found that some borrowers unable to repay loans, or their families, had been trafficked or forced into labour or prostitution. Police investigations into illegal moneylenders have reportedly increased, including through the establishment of dedicated police units in some provinces. As the high interest rates are typically not written on loan papers police face difficulties in convicting illegal moneylenders.

26. This country information is generally consistent with the applicant’s account, including what led him to turn to the loan shark (being unable to get a bank loan to meet ongoing expenses in what appears to be a struggling business), the nature of the transaction, and the loan shark’s practices.

27. However, the Tribunal also has a number of concerns about the applicant’s account. First and foremost, the applicant’s failure to mention this claim prior to the hearing on 11 February 2021 raises doubts as to its genuineness.

    §   There is no hint of this on the protection visa application form itself.

    §   The applicant’s explanation for this omission was that he told the person who completed the protection visa application form on his behalf about the claim, and he does not know why this person failed to record the information.

    -   The Tribunal accepts that the applicant had little or no English in August 2018, when the form was completed; and that he therefore relied on another person to help him.

    -   As noted at hearing, it is clear that this person failed to declare their role, as the form incorrectly states that the applicant completed the form without assistance.

    -   It is also apparent that the person did not even record basic information such as the applicant’s education, employment and family; and that the replies to the questions about protection needs were simply replicated.

    §  However, as the Tribunal flagged at hearing, the applicant knew that he was seeking protection and, potentially, permanent residency in Australia. It is surprising that he did not take an active interest in the contents of the application, particularly as an educated businessperson.

28. Second, the applicant confirmed at hearing that he arrived in Australia in March 2018, but did not seek protection until August 2018, some five months later. He commented briefly that, after the expiry of his transit visa, he wanted to make an application to stay in Australian legally on a protection visa. As noted in the delegate’s decision record, the transit visa expired [in] March 2018, a few days after the applicant’s arrival. The applicant did not directly address his delay in seeking protection, or convey any sense that he was afraid of returning to Vietnam. Rather, he appears to have been merely seeking a basis on which to stay in Australia. This reinforces the impression of a casual attitude to the protection visa application from the outset, and undermines his new claim.

29. Third, the evidence about the applicant’s dealings with the loan shark is weak and inconclusive. The Tribunal takes into account that this may reflect the clandestine, undocumented nature of illegal moneylending. It also takes into account that the circumstances of the applicant’s immigration detention, and his limited contact with his migration agent, may have made it more difficult for him to prepare for the hearing. In this context, it notes that he has provided no documentary evidence in this matter at all, even in relation to his legitimate business or property arrangements in Vietnam. Even so, the Tribunal has concerns as to the reliability of his claimed dealings with the loan shark, and the associated harm. These include the following:

    §   While the applicant gave some information about the business and his financial problems, his account of his dealings with the loan shark was less coherent and consistent.

    -    For instance, he explained that the loan shark had no major concerns so long as he continued to meet the regular interest repayments. At face value, this seems plausible. However, it does not sit well with the applicant’s other evidence that he sometimes struggled to meet repayments (which prompted them to intimidate him). The applicant described his hometown as a rural area, where the loan shark would be able to pursue him in the future. It is surprising, then, that the loan shark did not take an interest in the closure of his business.

    -   The applicant also stated that, after closing the business and selling the heavy equipment in 2016, he found work on other project sites, often as a supervisor. He used the proceeds from the sale to keep up the interest repayments with the loan shark, and drew on these funds for his travel to Australia (with stated final destination Europe) in early 2018. It is difficult to reconcile this with his advice that there were occasions when the debt collectors came by and harassed him (implicitly because he was struggling to make a payment on time).

    -   The applicant’s description of the problems he experienced in Vietnam with the loan sharks appeared inconsistent and improvised. As noted above, he claimed their agents sometimes came by his home and drank alcohol outside, implicitly in a thuggish manner intended to intimidate him. Earlier in the hearing, however, he went so far as to state that they pursued both him and his wife, and that they actually caused property damage.

    §  The applicant’s comment that, if he were to return to Vietnam, he would go to a different (more heavily populated) place to find work, and continue repaying the loan shark before eventually returning to his hometown also raises the concern that he did not flee Vietnam in response to any credible threat throughout the country, but rather for economic reasons (which may or may not have included the repayment of debts). In response to the Tribunal’s further questions, he clarified that the loan sharks have a network throughout Vietnam, and he is unsafe everywhere. He appeared to indicate that this is general knowledge. The Tribunal is concerned that the applicant tailored this response, and it does not accurately reflect his concerns or his circumstances.

    §  Overall, the Tribunal considers hat the applicant has drawn on general knowledge about loan sharks, or anecdotal accounts, or perhaps some past experiences of his own. However, it does not believe that his new protection claims are a full, frank account of his financial situation, his experiences of past harm, or his fears about returning to Vietnam.  

30. Taking all of the above concerns into account, the Tribunal does not accept that the applicant has a large unpaid debt to loan sharks in his home town; that he (or his wife, or other family members) were subject to threats, intimidation or property damage in Vietnam; that the applicant departed Vietnam fearing harm from loan sharks or their agents; or that he genuinely fears persecution or significant harm from such people if he returns to Vietnam.

    ASSESSMENT: REFUGEE CRITERION

31. In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in light of the above findings of fact, and having regard to other relevant factors such as the applicant’s future conduct and country information.

32. The Tribunal accepts as plausible that the applicant and his brothers had a family-owned [business] that failed; and that he later found work in the [specified] sector as a supervisor (commensurate with his business experience and education). However, for the reasons stated above, the Tribunal rejects his claims to be indebted to a loan shark, to have experienced past harm due to irregular repayments, to have left Vietnam due to such threats, or to genuinely fear that a loan shark will kill or seriously harm him if he returns to Vietnam without the money to repay the loan shark in full.

33. The Tribunal finds there is no real chance of a loan shark, their agents or any underworld figures pursuing the applicant if he returns to Vietnam, to punish him for being unable to repay an earlier loan, for any lapse in interest repayments, or for any other reason. It finds he does not have a genuine or well-founded fear of persecution arising from such circumstances. He therefore does not meet s.5J(1)(b) and s.5J(1).

1. It is unnecessary for the Tribunal to assess whether such a claim would meet s.5J(1)(a), that is whether such persecution would be for reasons of race, religion, nationality, membership or a particular social group or political opinion; or whether it would s.5J(2) would apply because effective protection measures are available to him.

2. The applicant acknowledged at hearing that his protection visa application included the words: ‘no freedom, equality, human rights, religious freedom where had a lots of environmental disaster and corruption’. He did so briefly, without enthusiasm. The Tribunal accepts as plausible that he may consider Vietnam’s general political, human rights or environmental conditions to be less favourable than those in Australia. However, it does not detect any political opinion or conviction on the applicant’s part. The Tribunal is not satisfied that such general conditions involve persecution within the meaning of s.5J(1). Exposure to such living conditions does not involve serious harm to the person, as required by s.5J(4)(b); it does not involve systematic and discriminatory conduct (s.5J(4)(c)); and it is not for one or more of the five reasons set out in s.5J(1)(a).

3. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Vietnam.

4. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

5. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.

6. The Tribunal finds in light of the above findings that the applicant did not suffer ‘significant harm’ as defined in s.36(2A) and (2B); that he is not a person of adverse interest to a loan shark or anyone else; and that there is no real risk of underworld figures killing or otherwise punishing him.

7. To the extent that the applicant may be critical of living conditions in Vietnam, the Tribunal does not accept that these result in ‘significant harm’ and, even if they did, the associated risk is one faced by the Vietnamese population generally and not by the applicant personally: s.36(2B).

8. The Tribunal therefore finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no grounds that suggest he will be subject to significant harm, for any reason, if he returns to Vietnam.    

9. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

10. 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).

11. 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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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.

    James Silva
    Member

    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 themself 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 B, immediately below.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.