2009400 (Refugee)
[2022] AATA 968
•18 February 2022
2009400 (Refugee) [2022] AATA 968 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2009400
COUNTRY OF REFERENCE: Vietnam
MEMBER:Genevieve Hamilton
DATE:18 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 February 2022 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from man who borrowed money – threats and assault – inconsistent claims and evidence – not a member of a particular social group as defined – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any 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
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant came to Australia on 16 November 2018 and applied for the visa on 15 February 2019. The delegate refused to grant the visa on 25 May 2020. The applicant applied for review on 5 June 2020.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).
A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Australia does not have complementary protection obligations where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
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.
CLAIMS AND EVIDENCE
In his protection visa application the applicant said he was born in Vietnam on [Date 1], travels on a Vietnamese passport and has a Vietnamese ID card, and is a Vietnamese citizen as are/were his parents. He is married (he married [in] September 2014). His wife and children live in Vietnam, they are also Vietnamese citizens by birth. He speaks, reads and writes Vietnamese. He arrived in Australia [in] November 2018 as a Visitor. He has extensive travel history for work (2011-17). He qualified as [an Occupation 1] in June 2008 and from July 2009 until coming to Australia he was employed [doing a job task] for [a company].
The applicant said he left Vietnam because he had problems with a person called [Mr A] who lives in the applicant’s home district. [Mr A] borrowed money from the applicant in 2014 and was late paying it back. He did pay it eventually after the local government threatened to report him to the police. But now he is angry and blames the applicant for not doing well in business and for insisting on being repaid. He has become physically aggressive and comes to the applicant’s house and physically assaulted him and threatened to kill his family and himself. The applicant was now scared to return to Vietnam as [Mr A] will seriously injure him and his family, and has told his friends and family that he will kill him. The applicant said he did not seek help from the police because it was a private matter and they would not intervene. Also [Mr A] threatened revenge if the applicant reported to the police. He did not relocate because [Mr A] has connections with underground groups all over the country.
In a supporting statutory declaration the applicant said the initial repayment term was two years.
”In June 2016 he did not pay me back so I went to ask him for the money. He responded by saying that he could not pay me back because his business had failed but that he promised to give me some of the money back in the next few months. In 2017, after I had visited his house many times, he paid me back 100 million Vietnam dong and promised to pay me back the rest at a later time. Because he was struggling in business I agreed to allow him more time to pay me back. At the end of 2017, he bought some interior furniture, despite owing me 100 million Dong. I went to him to ask for the money but he replied he didn’t have it. We had a fight, but not seriously. Some people tried to help us mediate but he threatened to never pay the money back.”
At this point the applicant reported [Mr A] to the local Government who threatened to report him to the police and the rest of the money was paid back. Threats and assault ensued as stated above.
”Since that moment, every time I see him he blames me for his failed business. He comes to my house when he is drunk and threatens me and my family with violence. He has even used physical violence on me and caused injury. I reported the case to police but they just mediate and do not interfere because its private matter as they say.
I remember when I was walking home at night, he had a knife and chased after me, threatening to kill me. I am so scared he will kill me. He told me if I go to the police again he will kill me. Now, I am too scared to go out. My family have advised me to go to another village but he has a large network of friends and I know he will find me wherever I am in Vietnam. It is not possible for me to live in any part of Vietnam now.
He seems to have other people working with him because just before I left for Australia a group of men arrived at my house with weapons. I was lucky to escape through the back door but it scares me now he has so many people working with him.”
A hearing of the Tribunal was held on 31 January 2022 by teleconference. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing this way. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by such means. The applicant consented to this arrangement. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant said he is from Ha Tinh, his parents, siblings and his wife and two children live there. He was employed in [work sector] so he spent one month on [a worksite] and one month at home.
The applicant said he lent 200 million dong (which he said was equivalent to about $12000 Australian) to [Mr A] on a verbal agreement because they had known each other for a long time. He was late paying it back and then only paid half. His business kept going down and he had financial losses and would get drunk and come to the applicant’s house.
One time when the applicant went to [Mr A]’s house to ask for payment [Mr A] hit the applicant with a stick and he still has a scar on his [body part]. This was at the end of 2017. The applicant reported this to the local village head but they have no enforcement power and can only conciliate. They said the applicant should not make trouble and noted that there was no written agreement.
After this [Mr A] threatened to kill the applicant whenever he saw him. On one occasion the applicant was walking at night when [Mr A] chased and threatened him with a weapon – the applicant couldn’t see what it was. He managed to escape.
[Mr A] said he would kill the applicant, or would get someone else to kill him, if he reported him to the police.
The Tribunal asked why the applicant with his wife and children could not relocate, for example to Vung Tau where his work was based. The applicant said [Mr A] knows where he works and had said he would find him anywhere. The Tribunal observed that [Mr A], on the applicant’s own evidence, appeared to be a rather ineffectual person and unlikely to be able to find the applicant in another part of Vietnam. The applicant said he did not want to leave his extended family. The Tribunal observed that if the applicant felt himself to be at risk of serious harm that might take precedence over not wanting to leave his family. The applicant said it was difficult to buy property and re-establish himself in another town. He would not be able to go and see his family. The Tribunal observed that his family could also come and visit him in another place.
The Tribunal noted that there was a discrepancy in the applicant’s evidence as to whether he reported his problem to the police or not. In his application he said he did not, in his statutory declaration he said he did. The applicant said he only reported it to the local village head who has some police powers. The Tribunal asked the applicant why he did not take it up with the police. The applicant said it was because [Mr A] threatened him. The Tribunal observed that if the applicant was being threatened that was a reason to engage the police.
The Tribunal asked whether [Mr A] always acted alone. The applicant said he threatened to hire other people. The Tribunal referred the applicant to the paragraph of his statutory declaration regarding armed men coming to the applicant’s house. The applicant declined to comment.
The Tribunal observed that apart from being hit with a stick and being chased, nothing had happened before the applicant came to Australia. The applicant said he was still afraid of being harmed if he returned home. [Mr A] still owed half the money and blamed the applicant for his financial failures. The Tribunal observed that the applicant’s written claims indicated that all the money was paid back. The applicant said this was not correct. It was only half. The Tribunal referred the applicant to his statutory declaration. The applicant declined to comment.
The Tribunal asked the applicant why he waited three months to lodge his protection visa application. The applicant said he was not really sure if he wanted to leave his job and his family. The Tribunal asked whether anything had happened since the applicant came to Australia. The applicant said nothing had happened.
The applicant confirmed he had no other claims.
FINDINGS AND REASONS
Based on the information in his application the Tribunal finds that the applicant is a national of Vietnam.
The applicant lent some money to a person called [Mr A], leading to a personal dispute against him. [Mr A] gets drunk and threatens him, and has hit him.
With regard to the refugee criterion, the applicant did not claim that the harm feared was for reasons of his race, religion, nationality or political opinion. Further, the evidence would not support such a claim.
S.5L provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society. The Tribunal is not satisfied that the applicant’s situation is due to him being a member of a particular social group however described. Rather, it arises from a grudge held against him individually.
It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
With regard to the complementary protection criterion, the Tribunal makes the following findings based on the totality of the written and oral evidence:
·[Mr A] paid back all the money he owed the applicant. This is clear from the applicant’s statutory declaration. Further, the applicant has now been away for three years. The catalyst for the dispute between them is now removed and long past, even if the hostility remains, which is relevant to the level of harm that might still ensue.
·[Mr A] was acting alone and does not have the help of others and cannot afford to hire others. The applicant’s response to this issue at the hearing indicates that his claim of armed men coming to his house was an embellishment.
·Only minor physical harm has ensued from the dispute. Based on his written evidence and at the hearing this occurred when the applicant went to [Mr A]’s house to demand payment after a long period of not being repaid and many such demands. He was hit with a stick but it was not serious. The applicant claimed to have been chased with a knife but at the hearing he said he could not identify what the weapon was. The Tribunal is not satisfied that the applicant was chased with a weapon.
·The applicant did not seek help from the police, as the Tribunal would expect him to wish to do if there were substance to any risk of him being significantly harmed, even if it could further aggravate [Mr A].
Although subjective fear of harm is not an element of the complementary protection requirements, the applicant did not seek to relocate his immediate family elsewhere, as the Tribunal would expect him to do if there was substance to any risk of them being significantly harmed. His reason for not doing so were not persuasive.
Having considered all the evidence, the Tribunal is not satisfied there are substantial grounds to believe that on his return to Vietnam there is real risk that the applicant will suffer significant harm of the types referred to in S 36(2A).
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) 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Genevieve Hamilton
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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