2009358 (Refugee)

[2024] AATA 4400

2009358 (Refugee) [2024] AATA 4400 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009358

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mia Bailey

DATE:20 September 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 20 September 2024 at 8:24am

CATCHWORDS

REFUGEE – protection visa – Vietnam – victim of loan shark – criminal gang – physical assault – fear of killing – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 1 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 February 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.

3. On 12 September 2024, the Tribunal wrote to the applicant to advise that it had considered the available information but was unable to make a favourable decision based on that information. The applicant was invited to appear before the Tribunal on 30 September 2024 to give evidence and present arguments.

4. On 17 September 2024, the applicant submitted to the Tribunal a ‘Response to hearing invitation’ form in which he advised that he will not participate in the hearing and consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear.

5. I am satisfied that the applicant has consented to the Tribunal making a decision on the papers and have therefore made my decision based on the available evidence.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[1]

   [1] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70; s 5AAA of the Act

10. For the following reasons, I have concluded that the decision under review should be affirmed.

    Background and receiving country

11. The applicant, [an age]-year-old male, arrived in Australia [in] November 2014 on a Temporary Skilled Work (subclass 457) visa. As outlined in the delegate’s refusal decision, on 15 March 2018 he applied for a Partner (subclass 820) visa which was refused on 29 January 2020.

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

    Evidence before the delegate

13. According to the protection visa application, the applicant was born and resided in Ca Mau, Southern Vietnam. His ethnicity is Vietnamese and he has no religion. He completed high school in Ca Mau in [year] and studied law at a university in Ho Chi Minh between [specified years].

14. Regarding his family members, his father is deceased. His mother and [specified family members] reside in Australia. His ex-wife and [children] reside in Vietnam. His current partner and [children] – all Australian citizens – reside in Australia.

15. Regarding his claims for protection, he stated that he left Vietnam because he borrowed a lot of money from creditors for his university fees. He studied for 3 years but did not finish the course because his mother was sick. He had to look after her and could not work. He was unable to repay the creditors. The interest rate was very high. The creditors threatened to hurt him, and he feared for his life.    

16. In response to whether he had experienced harm in Vietnam, he stated ‘Yes, I was bashed n [sic] been hit many times as I could not pay back the debt’. He did not seek help in Vietnam because ‘they consider as personal problem’. He did not try to move to another part of Vietnam because he would be homeless and the creditors would search for him.

17. If he returns to Vietnam, he thinks the creditors will look for him and harm him. For the same reasons above, he would be unable to seek protection from the Vietnamese authorities or relocate to another part of the country.  

18. The applicant was not invited to attend an interview with the Department. The delegate considered that the applicant was claiming to fear harm from loan sharks due to an outstanding loan and found this to not be for any of the reasons in s 5J(1)(a) of the Act. For the purposes of the complementary protection criterion, the delegate found that the applicant could obtain protection from the Vietnamese authorities in regard to any harm from loan sharks, such that there was no real risk of significant harm.

    Assessment

19. I have significant concerns with the applicant’s claims. The evidence provided by the applicant to the Department is not sufficiently detailed to enable me to be satisfied that he faces a real chance of persecution in Vietnam or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm. He has provided no additional evidence to the Tribunal in support of his protection claims.

20. The applicant claims that he borrowed money from creditors to pay for his university fees. However, he has provided insufficient details of when he borrowed this money; how much he borrowed and from whom; the terms of repayment; and the outstanding amount of the loan. He has provided no documentary evidence in relation to the claimed loan/s.

21. He claims that he was physically assaulted by the creditors due his inability to repay the loan/s. However, he has provided insufficient details of when and where these incidents occurred; who assaulted him; and whether he suffered any injuries due to these incidents. 

22. He claims that he did not seek assistance from the authorities in Vietnam. However, aside from claiming that the authorities consider these issues as personal problems, he has provided insufficient details of why he did not approach the authorities for help. As outlined in the delegate’s refusal decision, country information indicates that the Vietnamese police offer assistance to persons targeted by loan sharks.[2]

    [2] Delegate’s refusal decision, p 3

23. He claims that the creditors would search for him throughout Vietnam if he were to relocate. However, he has provided insufficient evidence of the identity of the creditors to enable an assessment of whether they would have the ability to locate him throughout the country. Further, he has provided insufficient evidence to establish that he would be of sufficient interest to the creditors to warrant them making efforts to locate him throughout Vietnam.

24. He has provided no details of what has occurred regarding the creditors since his departure from Vietnam in November 2014, including whether they have contacted him during the period he has resided in Australia or contacted his family members in Vietnam. He has provided insufficient evidence regarding why the creditors would continue to hold an adverse interest in him in circumstances where 10 years has elapsed since his departure from Vietnam.  

25. Given the lack of information identified above, without more detail, I am unable to make an assessment of the significance to be attached to the applicant’s assertions. He has not provided any further information to enable me to determine if he has suffered persecution in the past; whether his fear of facing persecution in the future is for any of the reasons in

    
    

    s 5J(1)(a) of the Act; or if his fear is well-founded.

26. In view of the insufficient information and lack of detail contained in the applicant's claims, I am not satisfied that he has been persecuted in the past, or that there is a real chance that he will be persecuted in the reasonably foreseeable future if he were to return to Vietnam. I am not satisfied that the applicant has a well-founded fear of persecution in Vietnam and therefore find that the applicant is not a refugee as defined in s 5H(1) of the Act.

27. Having concluded that the applicant is not a refugee, I have considered the alternative criterion in s 36(2)(aa) of the Act. For the same reasons discussed above, I am not satisfied that 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 that he will suffer significant harm.

    Conclusions

28. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Mia Bailey
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …