2009141 (Refugee)

2009141 (Refugee) [2021] AATA 5400 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009141
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Vlahos
DATE:8 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 8 December 2021 at 9.30AM
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from illegal money lender – borrowed to fund travel and studies in Australia – threats to family – credibility – vague and undocumented claims and evidence – country information – effective protection measures available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 5LA, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIMA (1996) 64 FCR 151
Kopalapillai v MIMMA (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIMA v Rajalingam (1993) 93 FCR 220
MIMIA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 13 March 2018 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 20 September 2017. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
On 1 June 2020 the applicant made an application to the Tribunal to review the delegate’s decision to refuse his application for Protection visa.
On 3 December 2021 a Tribunal hearing was held to review the delegate’s decision via the means of a teleconference due the persistence in the State of Victoria of the Covid-19 pandemic and effect of protocols having been put in place by the Tribunal for the safe conduct of hearings.
The applicant did not provide any prepared statements or written evidence prior to the Tribunal hearing and no witnesses were called to provide evidence in the applicant’s case or any written witness statements submitted.
The applicant was not represented at the hearing by a registered migration agent or legal professional.
The applicant was assisted at the hearing by an interpreter in the Vietnamese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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
The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origins and the applicant’s identity
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and the Tribunal,[1] and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Republic of Vietnam and has had his claims assessed against that country in relation to the claims made pursuant to sections 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal accepts and finds the applicant’s identity as is claimed proven for the purposes of this decision.
Department of Home Affairs File
[1] Department of Home Affairs File no. [Number 1]; Passport No. (Republic of Vietnam) [Number 2]
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a ‘copy’ of the delegate’s decision (‘departmental decision’) to the Tribunal with his application for review of a decision.
Background – the Applicant’s migration and visa history
On 26 August 2010 the applicant lodged a Student visa – TU 571 in order to allow him to travel to Australia for the purposes of education/study. On 6 September 2010 the applicant’s Student visa – TU 571 was granted. On 19 October 2010 the applicant arrived in Australia. On 22 March 2012 the applicant was issued with SCV/Non-Compliance Notice. On 28 February 2017 the applicant submitted an ‘invalid application’ for Protection visa to the Department which was ‘rejected’. On 20 September 2017 the applicant submitted to the Department a XA-866 Protection visa application which was valid and considered by the Department and the applicant’s claims for protection were rejected. On 14 November 2017 the applicant was provided with associated Bridging visa.
EVIDENCE AT THE HEARING
The applicant was born on [Date] and [Age] years-of-age, in Hai Phong city, Vietnam. He has family in Vietnam which consist of his parents and sister. He is of the Buddhist religion. His application for Protection visa provides no other details concerning the applicant’s education levels achieved while in Vietnam or any details concerning his employment while in Vietnam.[2]The applicant provides no further personal details in his application.
The Applicant’s claims for Protection
[2] Department of Home Affairs File no. [Number 3]; see, PART C Personal Details for Each Person included in this Application Form 866C submitted 17 September 2017 Folio 41
The applicant’s claims for protection as provided to the Department were as follows:[3]
§The applicant claims that he came to Australia to escape harm threatened by “Loan Sharks” in Vietnam.
§The applicant claims that he owes the loan sharks a lot of money and they are charging him fifty percent interest on the loan.
§The applicant claims that whenever he was late with repayments, they (the loan sharks) would assault him.
§The applicant claims that the police will not protect him as they have told him he can settle the matter on his own.
§The applicant claims he well not be safe from harm from the criminals who have loaned him money in Vietnam
§The applicant claims the gang members will kill him if he returns to Vietnam
[3] Ibid, see Department File no [Number 3]
The applicant provided no further claims to the Tribunal when he was asked if he had any new claims, he would like Tribunal to consider together with the above at the hearing.
The applicant was asked by the Tribunal – how much money was borrowed by him from the local illegal money lenders. The applicant stated the loan in question involved VND (‘Dong’) 2,000,000.00 (approximately, AUD$122.00 $1.00 = 0.000063).
The applicant was asked – did he sign a loan agreement with the money lender? The applicant stated that he had signed documents but did not have them in his possession but told the Tribunal that he would endeavour to provide them.
The applicant was asked – why did he negotiate a loan with the local money lender? The applicant stated that he borrowed the money in order to fund his studies in Australia.
The applicant was asked – what was his problem currently with regards to the loan? The applicant told the Tribunal that he had been ‘charged 300% each month on the amount he initially borrowed.
The applicant was asked- how much money is actually owed to the money lender currently? The applicant told the Tribunal (not providing an actual figure) that “…it could be a lot of money…”
The applicant stated that when he borrowed the money, he was told by the money lender that the interest charged would be “…very low…” but matters proved differently in the long term.
The applicant was asked – has the applicant any documents concerning his debt with him in Australia? The applicant stated that he had these documents but had not provided them to the Tribunal but will do so after the hearing.
The applicant provided no description to the Tribunal of the documents he had in his possession.
The applicant told the Tribunal that he arrived in Australia in 2010. The purpose of his journey to Australia was to commence and in time complete his education in Australia. The applicant told the Tribunal that his student visa allowed him first to study English and then proceed to further studies.
The applicant told the Tribunal that he did not complete his studies because he “did not repay the loan” and had “no money to continue his studies”.
The applicant told the Tribunal that he has not been working in Australia since his arrival and that he has been supported by his uncle. The Tribunal was told that the reason the applicant could not work while in Australia was because his visa did not allow it.
The applicant was asked to describe his dealings with the Vietnamese money lender. The applicant told the Tribunal that the money lender was an “illegal company”. The applicant provided no further description to the Tribunal.
The applicant stated that he had stopped paying the money lender – sometime in 2011.
The applicant told the Tribunal that though he had not paid the money lender for ten years, he has gone to his family in Vietnam and threatened them.
The applicant was asked – did his family members in Vietnam go to the police because of the money lender’s threats? The applicant told the Tribunal “no they did not go to the police” because he – the applicant, had “signed a document…”
The applicant was asked – did he provide any real or personal security for the alleged loan he claims to have procured from a local money lender? The applicant told the Tribunal that he had not provided “any security…”
The applicant was asked – if he returned to Vietnam would he expect to be harmed by the money lender? The applicant told the Tribunal that “…I do not know what [they] will do to …they have only [threatened]…”
The applicant went on to tell the Tribunal that the “…threatening is serious…” but the money lender and his associates “[they] have not threatened my life…”
The applicant concluded his remarks to the Tribunal by stating that he wished a visa to be granted to him, so he and his family remain in Australia.
The applicant will provide copies of his student visa[4] but told the Tribunal he had no documents concerning the loan he had with money lender.
[4] see, AAT File – Applicant’s documents concerning his studies undertaken in Australia but not completed
COUNTRY INFORMATION – VIETNAM – THE RULE OF LAW – ILLEGAL MONEY LENDERS
Organised criminal networks are a continuing problem in Vietnam, but authorities have made increased efforts to tackle them. Credible sources indicate that organised gangs operate a range of illicit operations including loan sharking, illegal gambling, extortion, prostitution and sex-trafficking, people smuggling, the production of counterfeit goods and the production, supply, distribution, and import/export of illicit drugs.[5]
[5] Vietnamese court sentences six to death for drug trafficking’, Voice of Vietnam (VOV News), 7 June 2014 CX322895; DFAT Country Information Report – Vietnam, Department of Foreign Affairs and Trade, 21 June 2017, CISEDB50AD4597, p.9
These criminal networks are based predominately in the major cities of Ho Chi Minh City and Hanoi as well as in the country’s northern provinces. In addition to controlling local operations, some of these organisations also operate internationally and have networks that reach throughout Southeast Asia and beyond. Vietnamese authorities have demonstrated increased efforts to eliminate people trafficking, including by identifying more victims, expanding anti-trafficking training and awareness campaigns for officials, vulnerable communities and law enforcement, but efforts have been impeded by a lack of government coordination.[6]
[6] Vietnam 2015 Crime and Safety Report: Hanoi, 18 February, US Department of State, Bureau of Diplomatic Security, Overseas Security Advisory Council (OSAC) 2015, p.5 CISEC96CF13669; ‘Cops in Vietnam continue to crack down on gangs of smugglers, robbers’, Thanh Nien News, 19 August 2014 CX1B9ECAB12445
Loan sharks charging illegal rates of interest are a widespread problem in Vietnam, but authorities have demonstrated a willingness to tackle their activities. Authorities have had difficulty prosecuting loan sharks for charging illegal rates of interest – above 150% of the base rate set by the State Bank of Vietnam – as these are rarely documented on loan papers.[7] A lack of resources, legal loopholes and inadequate implementation of laws also remain problems in tackling loan sharks;[8] however, credible sources assess that individuals targeted for unpaid debts are able to obtain protection from the police, who are active at the provincial, district and local levels and are subject to government authority.[9] In the recent past authorities in Vietnam, particularly Ho Chi Minh City, have embarked on some high profile crackdowns on gang activity – including gangs involved in loan sharking – that yielded nearly 7,000 arrests in the second half of last year.8 In 2016, Vietnam, along with the rest of the Association of Southeast Asian Nations (ASEAN), made financial inclusion one of their top priorities – including the ability of people to access loans and legitimate forms of credit.[10] Authorities try to encourage people in need of money to use credible loan sources like the Capital Aid Fund for Employment of the Poor – a non-profit microfinance institution – but the amounts available through these sources can be insufficient.[11]
[7] 2017 Trafficking in Persons Report – Vietnam, US Department of State, 27 June 2017, OGD95BE927071
[8] Loan sharks feed off poor, naive workers’ , Viet Nam News, 11 September 2015 CXBD6A0DE18811; ‘Southern Vietnamese cut deals with loan sharks at exorbitant rates’ , Tuoi Tre Online, 23 February 2016 CX6A26A6E9775
[9] “Black credit” besieges workers, students before Lunar New Year, VietNamNet Bridge, 29 January 2016, CX6A26A6E9780
[10] NA approves delay to Penal Code 2015’, Viet Nam News, 1 July 2016 CX6A26A6E12697; Loan sharks feed off poor, naive workers’, Viet Nam News, 11 September 2015 CXBD6A0DE18811; Ives, M & Nguyen, N S, ‘Vietnam's gamble: Whether or not to legalise betting’, Al Jazeera, 27 January 2016 CX6A26A6E13872
[11] ‘Upper Tribunal (Immigration And Asylum Chamber) Appeal Number: AA/08316/2014’, Government of the United Kingdom and Northern Ireland, 1 April 2016, CIS38A80124972
Internal security is the responsibility of the Ministry of Public Security. There are police organisations at the provincial, district and commune (local) levels over which people’s committees exercise some authority.11 There are two core forces: the People’s Security Force (An ninh Nhan dan), responsible for national security, and the People’s Police Force (Canh sat Nhan dan), which is responsible for social order and public safety.[12] The People’s Police force handles traditional police work such as neighbourhood policing, traffic control, household registration, and the issuing of identification cards.[13]
[12] Public Insecurity: Deaths in Custody and Police Brutality in Vietnam, Human Rights Watch, 16 September 2014, CISA447F082797, p.14
[13] Public Insecurity: Deaths in Custody and Police Brutality in Vietnam, Human Rights Watch, 16 September 2014, pp. 5-8 CISA447F082797
Police are effective in maintaining public order but have limited capacity in other areas, especially investigations. Law enforcement personnel are present in significant numbers across the country, particularly during politically sensitive gatherings or occasions.[14]At the commune level, guard forces composed of residents or members of government-affiliated social organisations commonly assist police.
[14] ‘Country Reports on Human Rights Practices 2015 – Vietnam ‘US Department of State, 13 April 2016, Section 1(d) OGD95BE926333
Police officers sometimes act with impunity. Internal police oversight exists but is subject to political influence.[15]Police frequently ill-treat or torture suspects to elicit confessions and sometimes use excessive force in responding to protests over evictions, land confiscation, and other social issues.[16]For example, in May 2016, police used excessive force to disperse pro-environment marches in Hanoi and Ho Chi Minh City, with many protestors reporting that they were beaten and detained for hours.[17]Police officers rarely face any consequences for even serious transgressions,[18]and there are reports of deaths in custody.[19] In 2014, President Truong Tan Sang condemned the practice of torture and forced confessions.[20]Since then, it has become a priority reform.[21]
[15] Vietnam 2016 Human Rights Report, US Department of State, 3 March 2017, OGD95BE926901, Section 1
[16] Human Rights Watch World Report 2016: Events of 2015 – Vietnam, 27 January 2016, NGE43874C8
[17] Human Rights Watch World Report 2017 – Events of 2016, Human Right Watch, 13 January 2017, NG2A465F52, p. 670
[18] Public Insecurity: Deaths in Custody and Police Brutality in Vietnam, Human Rights Watch, 16 September 2014, p. 5 CISA447F082797
[19] Human Rights Watch World Report 2017 – Events of 2016, Human Rights Watch, 13 January 2017, NG2A465F52, p. 670
[20] Vietnam’s rising repression, New Mandala, 22 September 2015, CXBD6A0DE15741
[21] Vietnam’s rising repression, New Mandala, 22 September 2015, CXBD6A0DE15741
FINDINGS AND REASONS FOR DECISION
The issue of credibility

The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining ‘credibility’. The Tribunal notes in particular, the cautionary note expressed by Foster J [194]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could have been reasonably accepted…”
The Tribunal also acknowledges and accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, (1992) at paragraph [196]). However, the Handbook, states at paragraph [204]:
“…the benefit of doubt should, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts…”
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant (s). When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. The Tribunal must bear in mind that if it 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 be possible true: see, MIMA v Rajalingam (1993) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion made by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMMA (1998) 86 FCR 547.
The applicant claims that he faces harm from a local illegal money lender or money lending syndicate or company if returned to Vietnam as the applicant has borrowed from them a sum of money (to fund his studies in Australia) and with compounding interest is now at a level he cannot repay. The applicant believes he will not be safe from harm from the money lender and his syndicate who have loaned him money - anywhere in Vietnam. The applicant also claims that the police have not provided and will not provide him or his family members with adequate assistance. For the reasons that follow, the Tribunal does not find credible the applicant’s claims.
First, the applicant claims he borrowed the amount of VND (‘Dong’) 2,000,000.00 from a local money lender who was operating illegally in order to finance his education and travel to Australia. The applicant told the Tribunal that he could not repay the loan and interest because the interest had exploded out of control and that the sum accumulated was impossible to repay in full. The applicant also told the Tribunal that he had ceased making any repayments since 2011 to the illegal money lender – ten years ago. The Tribunal does not accept this as credible or the truth for a number of reasons. First, the applicant could not tell the Tribunal how much his actual debt to the local money lender is. The applicant only told the Tribunal that the interest on the sum borrowed had ‘increased by 300% per month.’ However, the applicant provided no timeline or sequence of events allowing for some quantification of the claimed debt as claimed. It stands to reason, that the applicant, as the borrower, would have some understanding or knowledge of what was the ‘figure’ of the actual loan and interest he was personally liable for.
Nevertheless, the applicant provided no idea to the Tribunal as to what was owed. Second, the applicant provided no paperwork to indicate that there was some transfer of money from the one party to the other. The applicant also did not provide the Tribunal of how he made payments to the illegal money lender up and until he stopped payments in 2011. The Tribunal was told at first, that ‘some documents were signed’ but the applicant could not tell the Tribunal with any degree of certainty when asked – what actual documents were signed. More to the point, the applicant then told the Tribunal that though there were documents in existence concerning his student visa, there was no loan agreement per se in his possession. Again, the applicant’s evidence as presented to the Tribunal has little detail and no substance. Third, the applicant could not provide any description of the person or persons he had dealt with in order to secure this problematic loan. He described the ‘money lender’ as an ‘illegal company’ but provided no other description. This lack of detail suggests to the Tribunal that the applicant’s claims of owing any amount of money to a local illegal money lender or illegal company operating as lender was mere embellishment of the truth orchestrated by the applicant in the circumstances in order attract the Australia’s protection obligations. The applicant may, in the opinion of the Tribunal have some financial issues awaiting him in Vietnam but the Tribunal is of the opinion that they are not of the kind which the applicant has presented in his evidence to the Tribunal at the hearing of this matter. The Tribunal therefore finds that the applicant will not face any type of threat or harm from an illegal money lender or illegal money lending company because of his inability to pay a loan with interest that has compounded as he claims and does not have a well-founded fear of persecution as provided for in s.5J(1)(a)(b) or (c) of the Act.
Second, the applicant claimed that the illegal money lender had ‘threatened’ his family and submitted that if he returns to Vietnam, he will face the same threats and even be physically harmed. The applicant claimed that the police did not assist his family when threatened because the police had told them that because the applicant had signed a document they would not intervene in the matter. The applicant also claimed that this attitude as made known to his family when they requested police intervention, the same police would also not provide him with any protection if he was to return to Vietnam in the reasonably foreseeable future. The Tribunal notes as did the delegate correctly acknowledged in his decision record that, opinion exists from the High Court to say that “…no country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence…”: see, Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003. Also, in the Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147, the Full Court of the Federal Court noted that the level of protection offered by the receiving country (Vietnam in this instance) must reduce the risk of significant harm to something less than a real one.
The country information as accessed by the Tribunal and incorporated within this decision above (in paragraphs [43] to [46]) as far as it concerns the adequacy of protection as provided to individuals by the Vietnamese state police does acknowledge that there are difficulties and inadequacies in the police and judicial system in Vietnam, but having regard to the information provided by the Department and other independent information sources, the Tribunal finds that protection in Vietnam is available (if needed) and is provided by the authorities in Vietnam and consists of an appropriate criminal law and legal system, a reasonably effective police force and adequately functioning judicial system as is required by s. 5LA(2)(c) of the Act. Indeed, while there may be some corruption in the system, there is nothing before the Tribunal to suggest that the state (in Vietnam) would be unable or unwilling to protect the applicant in his particular circumstances, were he to require the state’s protection from the illegal money lender or illegal money lending syndicate or company as he claims. The Tribunal therefore concludes and finds that effective protection measures as defined in s.5LA of the Act are available to the applicant in Vietnam and that he may access those if and when he (or his family members in Vietnam) returns to Vietnam in the reasonably foreseeable future.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Vietnam in the reasonably foreseeable future and therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Complementary Protection criteria
Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection as provided for in s.36(2)(aa) of the Act. For the reasons given in paragraphs [52] to [55] above, the Tribunal does not accept that the applicant was in any way under a threat from an illegal money lender or illegal underground money lending syndicate or company for money he borrowed from them and was unable to repay together with an enormous interest rate charged as he claimed, nor that any threat originating from the money lender or illegal syndicate or company or their associates was directed at the applicant (and his family) because he could not pay the borrowed sum of money and interest charged he owed nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm because of any demand by a local illegal money lender or illegal syndicate or company for the repayment of an unpaid loan that was still outstanding and that the local police would not provide him and his family with protection and assistance – if and when they require it. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Peter Vlahos
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.
…

[2021] AATA 5400

8 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal