1922743 (Refugee)

1922743 (Refugee) [2019] AATA 4564 (23 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1922743
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Catherine Carney-Orsborn
DATE:23 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 October 2019 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – pursued by loan sharks – illegal money-lending in Vietnam – effective state protection – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, first arrived in Australia [in] December 2008 as the holder of a [student] visa. The applicant departed Australia [in] July 2010, and returned [in] August 2010 and applied for a [partner] visa on 3 September 2010, which was granted on 29 November 2010. The applicant departed and returned to Australia four times between 2011 and 2013, and last returned to Australia [in] October 2013.
The applicant’s [partner] visa ceased on 14 September 2015, and the applicant withdrew his application for the permanent [partner] visa on 6 June 2019. The applicant’s [bridging] visa ceased on 4 July 2019, and the applicant became an unlawful non-citizen on 5 July 2019. The applicant was detained on 23 July 2019.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 25 July 2019. On 15 August 2019, the delegate refused to grant the visa on the basis that Vietnam can provide the applicant with adequate state protection. The applicant applied to the Tribunal for review of the decision on 15 August 2019.
The issues which arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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 (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.
The Tribunal has before it both the Department file and the Tribunal file. The Department file contains the application for protection forms, a copy of the Bridging Visa E refusal decision record, and a copy of the delegate’s decision record.
The applicant claims he will be killed by loan sharks in Vietnam from whom he borrowed money.
The following information is provided by the applicant in his application for protection form.
The applicant was born on [date] in Hai Phong, Vietnam. The applicant is of Vietnamese ethnicity and of no religion. The applicant speaks, reads, and writes Vietnamese. The applicant has never married. The applicant’s father is deceased, and his mother and brother currently reside in Australia. The applicant lived at one address in Vietnam from birth until January 2008. The applicant has since lived in Sydney.
The applicant completed unspecified studies at a college/vocational school in Sydney from January 2008 until January 2010. The applicant lists no employment history. The applicant states that he was subject to an intensive correction order in Australia.
The applicant claims that he came to Australia to study and borrowed money from people in Vietnam. The applicant cannot pay off the debt, and the people are now trying to find him. The applicant attempted to move to multiple cities in Vietnam, but was not safe, and the people can find him wherever he goes. The applicant claims that the Vietnamese police will not help him. The applicant fears that he might be killed.
On 22 October 2019 applicant appeared before the Tribunal for a hearing. The hearing was conducted with the assistance of an accredited Vietnamese interpreter.
A summary of the oral evidence is as follows.
The Tribunal went through the introductions and explained the process. The Tribunal explained that the Tribunal would consider the evidence before it and apply the same law that the Department applied however was not bound by their decision and would make a fresh decision. The Tribunal explained that it had the Department file as well as the Tribunal file and had access to the Department’s databases.
The Tribunal indicated that it had noted that he came to Australia in 2008 on a student visa and asked if he needed complete interpretation or assistance at times. He indicated he required complete interpretation.
The applicant indicated that he had no problem understanding the interpreter. The Tribunal then showed the original application for protection forms which he had completed and lodged with the Department. The Tribunal asked if he was satisfied that the information contained in the forms was true and correct. He confirmed that it was.
The applicant then went through some background. He confirmed he first came to Australia on a student visa in 2008. He was then changed to be a dependent on his mother’s partner visa. He said he had several trips back and forward to Vietnam until 2013. He stated that after 2013 he did not return even though he was entitled to make the trip. He said that this was because he owed money in Vietnam.
The Tribunal asked about the intensive correction order he was subject to which was listed in his application for protection. He responded with words to the effect that due to his debt he wanted to earn money and as a result he became connected to illegal activities. He spent time in remand and then he was sentenced to 2years and 10 month intensive correction order. He said it was a marijuana related charge being the cultivation of cannabis plants. He said he was arrested about two years ago.
The Tribunal asked why he could not return to Vietnam. He responded that he incurred a debt in Vietnam. The people he owes the money to have demanded repayment. He incurred the debt early in 2013. The Tribunal requested more detail of the debt. He said it was from the end of 2012 to 2013. He said the amount was 500million dong. The Tribunal asked what he needed the money for. He responded that he was gambling in Vietnam and had debt so he borrowed money to pay back previous debts.
He claims that he borrowed from a number of friends in Vietnam who owed a pawn shop. He claimed that there have been daily messages coming to his family house in Vietnam. He claimed that his brother lives in the house and has been threatened. He claims that the threats have been that if he does not pay the debt they will deal with him when he returns.
He said he has a maternal grandmother and older brother in Vietnam. He has two aunties in Australia. He also has his mother, step-father and younger brother in Australia.
The Tribunal asked for more detail about the loan. He claims that he knew a man in Vietnam so he approached him as he owed money to other people in Vietnam he asked for a loan. He promised he would repay the friend as he would work and send money over to repay him for the debt. He claimed that unfortunately his mother applied for the [partner] visa and there was a bridging visa. He claims he was not in a position to work and earn money. He claims this is the reason he became involved in illegal activity that landed him in gaol.
The Tribunal asked how much he owed in Australian dollars. He responded more than $30,000aud. The Tribunal asked why the friend would lend him money when he knew he was leaving Vietnam and it would be difficult to enforce and collect.
The applicant responded with words to the effect that at that time he was close to that man. They were reasonably close friends, he knew his mother and his brother and he was assured that he would pay his friend back. Due to this trust he lent the applicant money, and he stated words to the effect that if you have property in Vietnam you can use the deeds to show and secure payment.
He said words to the effect that he did pay back some of the interest. Some of the capital was deducted to repay the interest.
The Tribunal asked if his friend lent the money to the applicant as there was a house as security. He responded that this was not entirely the reason; the house did not belong to the applicant. There was an agreement that the applicant could pay back the money by instalments and they trusted him to keep his word. After they did not see any money from the applicant, they would come to his brother’s house and cause a commotion and raise hell, so his brother rang him and begged him to do something to about the problem.
He claims his brother is still living in the family house which was left by his father. He claims that his mother is the registered owner.
The Tribunal asked for more detail about the threats his brother faced. He claimed that they initially came very often and after he left in 2013 they then came more frequently. He claims it was towards the end of 2013 that they started coming to his brother’s house. He claims that his brother is still living in that house. He claimed his brother is a working in a factory in Vietnam.
The Tribunal said it found it confusing that a money lender would lend a large amount of money to someone they knew was leaving Vietnam and they did not take any security.
He responded that it was not really a loan, it was a debt. He owned the friend a gambling debt and was not able to repay the debt so it was arranged through another friend. He claims he lost money when he gambled on soccer games.
The applicant confirmed that his younger brother in Australia is [age] years of age. He is working in a factory. His mother and step-father are also both working in Australia.
The Tribunal again asked for more detail about the harm that would be done to him if he returned to Vietnam. He responded he did not know to what extent he would be harmed. He said he did not provide any detail or information about the loan as it has been six years and a long time. He said the loan was just by word of mouth and there was no information attached to the loan. He said after such a long time he cannot get any other information.
He said he was resigned to returning to Vietnam when he heard about the AAT appeal. He thought that the debt companies would be collecting the loan.
The Tribunal asked why he could not seek protection from the authorities.
He responded that no protection existed in Vietnam.
The Tribunal pointed out that he was claiming that his brother had been harassed since 2013, it was now 2019 and his brother was working and living in the same house. The Tribunal asked for more clarification about how he would suffer. He responded that he has been threatened that if he returns to Vietnam he will have to suffer the consequences of his actions.
The applicant stated that he was very close to his family. He claimed that he and his mother are closer than they have ever been. The Tribunal asked would his mother and family help repay the debt. He responded that she works [in specified role] and does not earn much. He responded he does not want to bother her with his problems. He claimed that he had planned to work and pay off the debt after he had served his time.
He said the authorities cancelled his visa and he was now in detention
He said he had previously worked in Australia in a factory, he claims he was able to work for one year and after the company found out about his visa he was downgraded.
The Tribunal asked why he did not try to pay off some of the debt to alleviate the pressure on his brother. He responded that it was his intention to pay off the debt however his first priority was in getting a car. He worked in 2015 and 2016 and had to do odd jobs. He said money was tight and he had to survive on what he earnt.
The Tribunal asked the applicant to consider where his debt fits in the definition of refugee. He responded that he fitted in as a member of a social group. He said a group in society are persecuting him they are after him.
The Tribunal asked him to clarify that he was referring to his friend that owned a pawn shop and he responded that he was.
The Tribunal then put to the applicant information that it considered as adverse as it would cause the Tribunal to find that he lacked credibility and therefore would not accept his story. The Tribunal advised that the applicant could ask for time to answer and an adjournment to consider his response.
The Tribunal put to him that in his bridging visa application he had stated that he owed $10,000aud debt he had earlier told the Tribunal the debt was over $30,000aud. The Tribunal pointed out that the bridging visa application was in July 2019. The Tribunal further pointed out that in that application he stated he moved to Sydney due to work commitments.
He elected to respond at hearing. He stated that the bridging visa was prepared by his solicitor and his answer was a general answer. He said he had said more than $10,000aud and he did not realise it was written down precisely. He said that his work to Sydney was not for work but just for a change in environment and a work concern as well.
The Tribunal asked if he was able to move back to Vietnam and live in a different area given it is just this one area. He responded that he did not have a cent on him to do this. He responded that his family have helped him with all his legal costs. He claims there is no money left. He confirmed he had a very supportive family and they have looked after him financially.
The Tribunal said that it was concerned as in his application for a protection visa he had said he came to Australia to study and he owed a debt. He responded that this was another debt. It was a loan raised by his mother to send him to Australia. He said it was not what we are discussing today. Today is a different loan. The Tribunal pointed out that this is what is in his application for protection.
He responded that there was a miscommunication between him and his solicitor. He claims he was in [detention centre] and he did not know the full details of what was in the application. He said it is a mistake and miscommunication. He said that everything he is saying at the hearing is the truth. He said it was different to the loan he raised in 2013 to pay off his gambling debts. The Tribunal pointed out that in his application for protection he claimed that he had moved around Vietnam to different areas to escape the debt collectors but they found him. At hearing he stated he had left for Australia immediately after he secured a loan.
He responded that he did not want to answer any more questions. Whatever was written in the application for protection form was a miscommunication. The details were very vague and he did not know what words were written there.
The Tribunal pointed out that earlier the Tribunal had shown him the application for protection and he had confirmed that the information in it was true and correct.
The Tribunal pointed out that in his application it was stated he had a Vietnamese interpreter and his solicitor was of Vietnamese background.
He responded with words to the effect that the only thing he wanted to say was that he had been in Australia for 11 years and is used to the way of life. He wanted to stay and raise a family. He was willing to take the consequences for his actions. He claimed that other than his one matter which involved gaol he has not done anything wrong.
COUNTRY INFORMATION
A UK Home Office report on illegal money-lending in Vietnam stated the following:
Illegal moneylenders are widespread in Vietnam with many poor people accessing money in this way due to the complicated nature of borrowing money from banks. Illegal moneylenders provide easy access to their operations by using online websites offering quick and easy loan services, they also distributed leaflets in public areas.
People are able to borrow money by providing little or no personal information. Some loan sharks offer loans with iCloud accounts as collateral, and when the debtor is unable to pay, the lender locks their iCloud account rending their iPhones unusable. Loans offered on these terms are limited to equal or lesser value of the debtor’s phone6. Some lenders are willing to loan with just the guarantee of an acquittance or with only the borrower’s signature7 8. Loans with agreed high interest rates without collateral and agreed with just the borrower’s signature were referred to as “black credit”
According to a 2016 article in [online newspaper] VietNamNet ‘black credit is easy to get but difficult to pay because the borrowers are usually not interested in the conditions for the loans, don’t read well and [don’t] understand all the terms specified in the loan papers and the lenders don’t use a percentage in calculating the interest money but only specific numbers. Therefore, the borrowers don’t know the interest rates they must pay.’
Where people can access legal loans Vietnamese law states that the interest rate must be agreed upon by both parties and must not exceed 150% of the base rate set by the State Bank of Vietnam. According to sources the average annual interest rate offered on illegal loans is around 180% but can be as much as 255% (or 300%). Rates can vary depending on whether the lender is able to use collateral such as houses or cars or whether they rely on personal papers or guarantees through acquittances.
In order to evade the law some moneylenders registered as a pawnshop but operated as an illegal money lender.
According to an article in Tuoi Tre Online from 2016 ‘A large number of Ho Chi Minh City pawnshops have been labelled “backyards” for criminal activity because of the number of irregularities in their business operations. There are over 2,500 pawnshops in the southern metropolis, with many alleged to have facilitated criminal activity. According to police officers, such venues are often the workplace of local loan sharks and used to quickly offload stolen goods.’
An article in Voice of Vietnam, which interviewed Truong Thanh Duc, a local lawyer, stated that:
According to a Viet Nam News article from 2015 ‘Senior lieutenant-colonel Tran Thi Thuy, from the Police General Department, said that lending money for high interest was illegal. He said it had led to hundreds of bankruptcies and the loss of thousands of billions of dong. The bankruptcies were also associated robberies by desperate business people. This had led to 41 murders and 588 robberies from 2010 to 2014.’
‘Current regulations allow pawnshops to receive only goods as collateral while prohibiting the use of IDs and household books, Duc elaborated. If the borrowers fail to pay up, pawnshop owners can sell the items to recoup their money. They are strictly prohibited from threatening or forcing the borrowers to pay the money in any way, the legal practitioner explained. Credit institutions can only charge maximum interest rates of 30% a year, as per the Civil Code, Duc added. Meanwhile, many loan sites offer interest rates of up to 300% a year.’
…
Those who could not repay their loan with interest face the risk of incurring heavy debts and other repercussions such as harassment, beatings, threats to family members, direct threats, assault, kidnapping and being forced to sell their houses and assets to repay the debt.
Asia Times noted in October 2018 that ‘The social impact of black market gambling is immeasurable, though local media often report on the barbaric tactics employed by loan sharks and gambling syndicates to collect payments from punters.’
A journal article by the Public Library of Science (PLoS) noted that: ’Household debt can push people to accept extortionate job placement or employment terms and conditions—and, conversely, people may take out loans at difficult repayment rates to fund their migration’.
The Independent Anti-Slavery Commissioner issued a report in 2017 examining modern slavery experienced by Vietnamese national en route to and within the UK. Based on 75 National Referral Mechanism (NRM) files, the report concluded that the main reason for movement amongst both adults and children was ‘financial difficulty or needing to pay off a family member’s debts’.
There are reports of people (including children) being trafficked and forced into labour, sex work, following non-repayment of loans by their families. For example, the Guardian reported on a 20-year-old Vietnamese victim of trafficking who worked from the age of six to pay off her dead parents’ debts from a loan shark. She was repeatedly beaten with sticks, broken bottles and burned with cigarettes before being trafficked to the UK.
A Jesuit Refugee Service report examined Vietnamese trafficking victims’ experiences. The report cited an example of one man who was unable to repay his debt to loan sharks. He was subsequently sold into slavery and trafficked into China and then, after a few years, into Russia. He was forced to work in severely poor conditions with no salary and was routinely beaten. After some years, he was forced to come into the UK by boarding a lorry under threat of death.
CNN also reported on Vietnamese children working in child brothels in Cambodia whose parents had fallen victim to loan sharks
CPIT could find no further information within the sources searched on the repercussions faced by those unable to repay their loans.[1]
[1] UK Home Office, Country Policy and Information Note – Vietnam: Fear of Illegal Moneylenders, December 2018, pp. 9 – 10, paras [4.1.1] – [4.1.8]; pp. 11 – 12, paras [4.4.1] – [4.4.8], (accessed 24 September 2019).

The 2017 DFAT Report does not provide any information about money lenders, but states the following in regards to police protection in Vietnam:
Internal security is the responsibility of the Ministry of Public Security, although the military maintains public order in the event of civil unrest in some remote areas. Police organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.
The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.[2]
[2] DFAT, Country Information Report – Vietnam, 21 June 2017, pp. 21 – 22, paras [5.4] – [5.5].
In their December 2018 report in relation to fear of illegal moneylenders in Vietnam, the UK Home Office assessed that:
‘The state appears both willing and able to offer effective protection. However, there are reports of corruption amongst the police with impunity remaining a problem. A person’s reluctance to seek protection does not necessarily mean that effective protection is not available. Decision makers must consider each case on its facts. The onus is on the person to demonstrate why they would not be able to seek and obtain state protection.3
Nationality
The applicant travelled to Australia on a valid Vietnamese passport and claims to be a national of Vietnam. The Tribunal accepts that the applicant is a national of Vietnam and has assessed his claims against Vietnam as his country of nationality.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. 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.
The Tribunal has concerns about the applicant’s evidence. The Tribunal found the applicant to be inconsistent and unpersuasive. The Tribunal has the following concerns about the applicant’s evidence which cause the Tribunal to question its veracity:-
The applicant was asked to address and discuss the reasons why he could not return to Vietnam. The applicant has provided scant material to the Department. He provided an application for a protection visa but no statement with any cogent detail was attached or provided however there were still significant inconsistencies in the oral evidence he provided and the application for protection he provided to the Department.
At hearing the applicant claimed that he had travelled regularly to Vietnam from 2008 to 2013. He claimed that when he last visited in 2013 he incurred a debt. He claimed that he has not repaid that debt and therefore cannot return to Vietnam as he fears what the debt collectors could do to him.
When asked for details he expanded that he borrowed money from a friend who owned a pawn shop in Vietnam. He claimed the friend lent him more than $30,000aud. He claimed that this was at the end of 2012 beginning of 2013. He claimed he then left Vietnam and it was agreed he would repay the money from work he did in Australia. The Tribunal queried why a money lender would lend such an amount to someone who was about to leave the country. He at first responded that in Vietnam you could get a loan if you had the deeds to a house. He then said he did not own a house and the family home his brother lived in was in his mother’s name. He claimed that he had no documentation for the loan as it was a long time ago and is was just an agreement.
In the Department’s decision which was attached to the application for review it is stated that the applicant returned to Australia in June 2012, departed Australia in April 2013, returned in June 2013 and departed Australia in August 2013 and arrived back in October 2013. This indicates that if the loan was taken out in early 2013 he was able to return several times without him suffering any harm.
He could not explain why a money lender would forward such a large amount without any security except to say he trusted him as the money lender was a friend and also knew his brother. When asked to explain why he felt he would be suffering harm from the money lender he stated that his brother in Vietnam had been harassed daily from 2013. He claimed his brother was still harassed and threatened and his brother had asked him to do something to stop this harassment.
He could not explain in any adequate or believable way why he had made no attempt to alleviate the danger he claimed his brother was in. He at first stated that as the Australian authorities had put him on a bridging visa he could not work and repay the money.
Later when it was put to him under s424AA that in his bridging visa application in 2019 he had referred to previously working in Australia. He stated that his priority was to purchase himself a car not pay anything off the debt.
He stated that his mother, step-father and [age] year old brother in Australia all work. When it was asked of him whether they could help with the debt and alleviate the harassment his brother in Vietnam was suffering he stated they did not make enough to survive.
When it was put to him via s424AA that in his bridging visa he claimed they would financially support him he stated that they have financially supported him and they paid for all his legal expenses. When asked if they could help with the debt, he replied the money has all run out.
In his bridging visa he has said the loan was for $10,000aud. When this was put to him pursuant to s424AA that this was different to over $30,000aud he has told the Tribunal was owed. He responded that he had said over $10,000aud and did not think they would be precise.
In his application for protection he had referred to coming to study in Australia and having a debt. The Tribunal pointed out that this was different to his claim that he incurred a gambling debt in Vietnam and borrowed the money in early 2013 and then left and has not returned as his study visa was granted in 2008. He responded that the debt for him to study was a different debt. He claimed that was a debt incurred by his mother not him.
It was further put to him that in his application for protection it stated that he had moved around Vietnam to escape the debt collectors. However at hearing he claimed he left Vietnam immediately after he secured a loan.
He responded to the inconsistencies that there was a miscommunication between him and his solicitor. The Tribunal does not accept this as the document indicates he had a Vietnamese interpreter and his solicitor was of Vietnamese background.
He further claimed that he did not know what was in the application for protection. The Tribunal pointed out that earlier in the hearing it had shown him the application for protection form and he had confirmed that the information inside was true and correct. He also confirmed that he had knowledge of English from his study in Australian since 2008.
The applicant was not able to explain why the fear was so intense given his evidence that his brother has been harassed at a serious and daily level since he left in 2013. The applicant said the brother is still living in the same home and is working. The Tribunal does not accept that if the harassment was at such a dangerous level the brother and his family members would have been able to continue to live and work from 2013 to 2019 at the same address without getting some assistance from the family in Australia or local authorities.
The applicant had stated that his family were very close and supported each other. When queried why they would not assist he changed his evidence stating with words to the effect that they only made enough to survive in Australia. The Tribunal accepts that they may have work [in specified roles] however they have managed previous loans and been working in Australia for some years and he claims have paid for all his legal costs. The Tribunal would expect that if there was this serious threat to him and his elder brother and the family home they would have taken steps to ameliorate that threat.
For these reasons, and after considering the applicant’s lack of detail, inconsistency and ineffective response to the Tribunal’s concerns and questions the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal.
In response to the Tribunal’s concerns the applicant stated that there was a miscommunication or a mistake. The Tribunal accepts that one could make a mistake or two about timing and minor details however the Tribunal does not accept that the applicant who claims to be so fearful that he cannot return to his home country would not know significant detail such as the amount owed, whether he sought safety in other areas of Vietnam and whether the loan was for his study or his gambling debt. Furthermore the Tribunal does not accept that his family who he states have financially supported him and paid for his legal expenses would not seek to alleviate his or his elder brother’s suffering from the debt collectors. The Tribunal rejects that the applicant had taken out a loan from a friend who is a pawn broker and will now be subject to serious injury or threats. When asked several times during the hearing to detail the actual fear he gave a general response that he was not sure or did not know. After considering all the evidence the Tribunal is not satisfied that there is a real chance he will suffer any significant harm if he returns to Vietnam now or in the foreseeable future.
The Tribunal has above outlined the applicant’s inconsistencies in relation to the debt he claims he owes and risk of harm from debt collectors. Due to those inconsistencies and his lack of credibility the Tribunal rejects his claim that his family including his brother may be subjected to any danger or not be protected by the authorities in Vietnam.
The Tribunal rejects the applicant’s claim that there is a real chance that the applicant is at risk of harm from criminal elements controlled by the debt collectors or that the local authorities would not offer assistance.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to Vietnam now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his being a membership of a particular social group or for any other Convention reason.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).
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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn

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.
…

3 UK Home Office, Country Policy and Information Note: fear of illegal moneylenders, Vietnam December 2018 p.7.

[2019] AATA 4564

23 October 2019

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