2010618 (Refugee)

2010618 (Refugee) [2021] AATA 5317 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010618
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Paul Windsor
DATE:3 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 December 2021 at 3:23 pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – debt to a loan shark – significant and material inconsistencies between his written statements and his oral evidence – delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 23 June 2020 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 14 November 2019.
In his protection visa application the applicant indicated he was born on [date] in Nghe An province, Vietnam. He indicated he is ethnic Vietnamese and does not practise any religion. He indicated he was married [in] January 2015. He stated he departed Vietnam legally on [date] January 2007 and arrived in Australia on the same day, entering on a Student visa.[1]
[1] See the Departmental file.
In his application, the applicant stated that he is fearful that if he returns to Vietnam he will be harmed because his father borrowed money from a division of the local authorities, using him as a guarantor, which his father cannot repay.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that the applicant’s claims to fear harm are not for one or more of the five reasons set out in s.5J(1)(a) of the Act and therefore the applicant is not a refugee as defined in s.5H of the Act. In relation to the complementary protection criterion, the delegate, after considering country information, found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm.
The applicant applied to the Tribunal for review of this decision on 29 June 2020. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal by video-link on 2 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims from his protection visa application are summarised as follows:[4]
[4] See the Departmental file.
·He left Vietnam and came to Australia to study and build a better future for himself and his family.
·While he was in Australia his family began to face problems. They had limited funds when he left, which they used to cover his travel and tuition costs. In 2010 their business began to deteriorate and his father sought to borrow funds from the bank. This was refused, however, so his father decided to borrow from a division of the local authorities which he believed was affiliated with the government. In truth and unknown to his father, however, the funds go through the local triad which filters the funds through Government Departments as a way of money laundering.
·In haste, his father agreed to borrow funds which he cannot repay. He put the applicant’s name as a guarantor, hoping the applicant could help him by working part time jobs. Later, when they failed to make the monthly payments, they found out where the funds came from. His father’s life and well-being was threatened.
·The local authorities did not protect his family, but aided in the abuse and mockery.
·The gangs, who they know as un-uniformed police, came to his father’s home in the middle of the night wearing black t-shirts and masks. They ransacked everything and tore his mother’s earnings from her ears. She was left bleeding and refused medical assistance. His father was beaten in the front yard in front of neighbours, to intimidate them so they would not assist the family in any way.
·They wanted the family’s household registration papers, which his father sent to him in Australia for his keeping.
·In his pain and desperation, his father promised that the applicant would take care of the remaining debt, which now comes to $150,000. Because his father was in such pain, the applicant quickly borrowed $10,000 and transferred that after two days, during which the gang members stayed at the family home with his family kept inside. He promised he would pay a further $10,000 a month until the debt was settled but has been unable to do that as he can’t work due to his visa status.
·His father has gone into hiding, staying with friends in Vung Tau, as his life is under threat.
·His mother said she would stay behind so they won’t destroy the house, as she believes they will be less harsh in their treatment of her as she is a woman. She has been threatened many times and they have come to the house in the middle of the night making it impossible for her to sleep. Her mental well-being is being tortured. He is trying to find safe passage for his mother to leave the house as he feels it is not worth the fight given the risk to their lives. She is finding a means of escaping now. Their house is worth next to nothing, not enough to cover their debts.
·He is afraid to return to Vietnam because he has not been able to pay the debt and his life is now at stake. The debt increases every day. If he returns he knows the local authorities will turn a blind eye to his fate. A debt to these people is considered a debt to the Communist Party government. Corrupt officials use bribery money they have gained by loaning it through gangs who they leave in charge of debt collection. They will alert the gangs to his presence and he will be terrorised. They will chop off one hand as a warning, followed by the rest of his limbs, so his life will not be worth living.
Findings and reasons
Identity
On the basis of the copy of his Vietnamese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of Vietnam and that his identity is as claimed. The Tribunal accepts that Vietnam is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Vietnam, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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 reasonably have been accepted.
The Tribunal also 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’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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 applicants. 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 of 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 possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
For the reasons set out below, the Tribunal found the applicant is not a credible witness and considers the claims that he owes money to a division of the local authorities/a triad gang/a loan shark, and to be at risk of harm from criminal gangs should he return to Vietnam, have been concocted.
Assessment of claims
Evidence from the hearing
At the commencement of the hearing the applicant indicated that everything in his protection visa application was true and correct as far as he knew and believed. He said there were no mistakes he wished to correct. Contrary to what was stated in the application, when asked if he had any help or assistance in preparing the application, the applicant said he wrote it in Vietnamese and paid someone $300-400 to translate it into English for him.
When asked about his family in Vietnam, the applicant said he has his mother and [siblings] living there. He said his father had passed away two years ago due to an accident. He indicated his family had moved from Nghe An due to debt and were hiding in Da Nang. He said he is working in Australia and sends money back to Vietnam to support his mother while his siblings, who are all married, live independently. He indicated his siblings are working in Vietnam selling ‘stuff’ like clothes, but said they do not earn enough to support his mother as well as their own families.
Noting that the applicant indicated in his protection visa application that he was unemployed from January 2009 up until the time of his application in November 2019, because of ‘his visa’, the Tribunal asked what work he had been doing. The applicant said he had been doing [work] in Queensland until he met his wife, after which he moved to Melbourne where he has been working as a [Occupation 1].
Contrary to the advice in his application, which stated he married on [date] January 2015, the applicant said he and his wife married on [date] May 2013. He indicated he was not in that relationship anymore, commenting that the Department refused his ‘application’. When asked what year he met his wife, the applicant said it was a really long time ago but indicated he thought it was around 2010-11. When asked, he indicated she sponsored him for a Partner visa which was refused by the Department. He said he did not know exactly why the application was refused but thought the ‘evidence’ they provided may not have been strong enough.
The applicant confirmed that he came to Australia on a Student visa to [study]. He said he studied for more than a year, doing English language initially, then stopped studying due to problems with his family. He indicated that he returned to Vietnam once after he had been in Australia for about a year.
When asked why he applied for a protection visa in November 2019, the applicant indicated that previously he had borrowed money from a loan shark in Vietnam for his wife to buy a house. He said he was told if he goes back to Vietnam ‘they’ will get rid of him. He added that he has been in Australia for over 10 years now and does not know what to do in Vietnam. When asked, he said he borrowed the money in 2015. When asked what happened to the house, the applicant said when they broke up, his wife sold the house and left. He indicated the house was solely in his wife’s name because he does not have residence status in Australia.
The Tribunal asked the applicant why he would have borrowed money from a loan shark in Vietnam to buy a house in Australia. He said they thought they couldn’t borrow in Australia and in Vietnam it is hard to borrow from a bank but they thought if they borrowed from a loan shark the two of them could cover the interest payments. The Tribunal asked the applicant why his wife could not borrow from a bank in Australia if she was a citizen or permanent resident of Australia. He agreed she could but commented that she asked him to get money. When the Tribunal put to the applicant that it wasn’t finding his evidence that he borrowed from a loan shark in Vietnam to buy a house in Australia very convincing, the applicant commented that his wife also borrowed some money from a bank in Australia but he had to ‘chip in’ some money. When queried that is not what he had indicated previously, the applicant commented that was what he meant.
When asked, the applicant said the address of the house his wife purchased was [address]. When asked, he said the house cost over $600,000. He said he borrowed $70,000 ‘something’. When queried further regarding exactly how much he borrowed, the applicant said he borrowed $80,000. When queried why a loan shark in Vietnam would loan someone in Australia $80,000, he said his father was still alive at that time and they had their house in Vietnam plus the loan shark knew he was in Australia working. When asked, he said he had been sending back money to cover the interest on the loan. When asked what the interest rate was, the applicant said he did not know, commenting that the loan sharks just tell you what you have to pay per month. He said he used to send $1000 per month (which amounts to an interest rate of 1.25 per cent per month) but they had increased the amount over time to $1300-1400 a month.
The Tribunal observed to the applicant that his oral evidence to the Tribunal was completely different to what was in the written statement of claims in his protection visa application, and asked why that is the case. The applicant commented that when he made the application he sated that he owed some debt to a loan shark and if he went back to Vietnam they would kill him. He added that when he was still with his wife, he was able to set aside money to send each month but now he has to support his mother in Vietnam so does not have the money to pay the loan shark. The Tribunal observed that he had not mentioned anything at all in his application about having borrowed money from a loan shark to fund the purchase of a house in Australia with his wife. The applicant indicated that at the time of the application he owed money and could not go back to Vietnam, but he did not write in detail about the reasons why. The Tribunal observed that his written claims were detailed, but set out a completely different story, making no mention of him having borrowed $80,000 from a loan shark in 2015 to help his wife buy a house. The applicant again commented that when he applied he just stated he owed money and can’t go back and didn’t think he had to state what the money he borrowed was for.
Following an adjournment in the hearing, the Tribunal sought to clarify with the applicant the details of the claimed purchase of the house in Australia. The Tribunal asked the applicant if he was saying it was purchased in 2015. He indicated he was not sure of the date but thought it was around then. When queried about when his former wife sold the house, the applicant said she returned to Vietnam because her mother passed away and when she returned they broke up and she sold the house. When asked to provide dates for when this happened, the applicant said he is not good at remembering dates and could not say when this occurred.

The Tribunal asked the applicant why his wife did not return to him the $80,000 he claimed he contributed to the purchase of the house when she sold it. He commented that he asked her too but she said she would repay him when she was working. The Tribunal queried why she could not have repaid him from the proceeds of the sale. The applicant said he asked her to but she didn’t. The Tribunal asked the applicant what price his wife sold the house for, having bought it for over $600,000. He said he did not know. The Tribunal queried the applicant why he was not interested in what the house had sold for. He said all the paperwork was in her name.
Noting that in his protection visa application (lodged on 14 November 2019), the applicant stated his residential address was [address] and indicated this had been the case since [January] 2017, and his review application (lodged 29 June 2020) stated this was still his residential address (and he had not provided any updated address details to the Tribunal), the Tribunal observed that it seems he is still living at the address of the house he claims was sold by his ex-wife. The applicant said that is not the case. He said he just continues to use this address because it is on his driver’s licence. When pressed regarding why he would do that, he said he returns there to collect his mail and the people who live there now said it was okay for him to do that.
The Tribunal observed that during the adjournment it had searched for details of the property on [a] website (the address is actually [address]). The Tribunal commented that the website indicates the property was sold in September 2015 for $435,000 and then sold again on 12 May 2016 for $572,000. The applicant commented that he only knew what his wife told him, which was that the house cost $600,000.
The Tribunal asked the applicant about his comments that his family in Vietnam had experienced problems with the loan shark. He said after he borrowed from the loan shark they knew the address of his family in Vietnam. He said they went to the family home and threatened to take stuff. He said his family then moved to Da Nang to stay with their relatives. When asked, he indicated this was 3-4 years ago. When queried about his father’s death, which he had indicated occurred due to an accident around two years ago (he could not recall the date of his father’s death or give a more precise indication of when it occurred), the applicant said his father was killed in a hit and run incident when he was crossing the road. He commented that before that incident the loan sharks had traced his family to Da Nang, come to the house and threatened that if they did not get the money they would kill his father. The Tribunal queried the applicant that he had said previously that he was making monthly payments to the loan sharks. He replied that he was doing that when he was still with his wife. The Tribunal further queried the applicant that previously he had indicated that he was not able to make payments because he now had to send money to support his mother. The applicant reiterated that when he was with his wife he was able to send money to the loan sharks but said when they broke up he only had a little money.
The Tribunal queried the applicant that in his protection visa application, made just over two years ago on 14 November 2019, it stated that his father was living in Vung Tau (in southern Vietnam) with friends. The applicant indicated he didn’t write that, commenting that he only wrote in Vietnamese that he owed a debt.
The applicant commented that if he has to return to Vietnam there will be no-one to support his mother. He added that he has been in Australia for more than ten years and does not know what he would do in Vietnam or how he would get the money to repay the debt.
Assessment
The Tribunal found the applicant’s oral evidence to be vague, uncertain and entirely unconvincing. Considering the totality of his evidence, the Tribunal finds there are significant and material inconsistencies between his written statements and his oral evidence. The applicant also has not providence any evidence in support of his claims. For the reasons set out below, considered cumulatively, the Tribunal finds that the applicant’s claims to owe money to (variously) a division of the local authorities/a triad gang/loan sharks, and to be at risk of serious or significant harm from these entities and/or their criminal gang associates, have been concocted.
Firstly, as the Tribunal observed at the hearing, the details of the claims raised in the applicant’s oral evidence at the hearing were completely different to what was stated in the applicant’s written statement. At the hearing, he made no mention of his father having borrowed money, using him as guarantor, in or around 2010, from what his father thought was a division of the local authorities which he believed was affiliated with the government but turned out to be from a local triad laundering money for corrupt Communist Party government officials. He made no mention of transferring $10,000 to his father in response to his father promising that the applicant would take care of the debt, which by then amounted to $150,000, following a violent attack on the family home in which his mother was left bleeding. He made no mention of agreeing to pay a further $10,000 a month until the debt was settled. He made no mention of his father fleeing to Vung Tau while his mother stayed behind to prevent their house in Nghe An being destroyed. He made no mention of the debt being considered to be a debt to the Communist Party government. In his written statement, he indicated he was married in January 2015 rather than May 2013. He made no mention of having personally borrowed money ($80,000) in around 2015 from a loan shark in Vietnam to purchase a house in [Victoria] for his wife. He indicated that he had only worked in [a workplace] for the year immediately after his arrival in Australia, but had not worked subsequently due to issues with his visa (presumably lack of work rights), rather than having worked [at a workplace] in Queensland and as a [Occupation 1] in Melbourne. The Tribunal found totally unconvincing the applicant’s suggestion at the hearing that these differences arose because he wrote his claims in Vietnamese and a person he paid to translate his statements into English somehow altered or embellished them. As observed at the hearing, the written statements were quite lengthy and detailed, but told an entirely different story. The Tribunal finds there is no reason why a person engaged to translate the applicant’s claims would invent entirely different claims rather than translate into English what the applicant had written in Vietnamese.
Second, the applicant’s evidence regarding his relationship with his ex-wife was vague and unsupported by any corroborating evidence (such as marriage and divorce documents). He could not provide any clear timeline for key dates in their relationship, such as when they broke-up.
Third, the applicant’s evidence regarding the claimed purchase of the house at [address] was vague, improbable, unsupported by any corroborating evidence and inconsistent with publicly available evidence regarding the sale history of the property. It seems implausible that the applicant would be unaware of the sale history of a property he claims to have resided at since January 2017 and would be uninterested in the details of sales in 2015 and 2016 if he had borrowed $80,000 from a loan shark in Vietnam to put towards the purchase price as claimed. It seems implausible that he would think his wife had purchased the house for over $600,000 when it sold in September 2015 for $435,000. It is unclear why he would have given that address as his residential address from January 2017 if his wife bought the house in September 2015 and sold it in May 2016. His evidence regarding why his wife did not repay him his claimed $80,000 contribution, sourced from a loan shark, from the proceeds of the sale also was unconvincing. Initially he stated his wife indicated she would do so when she was working (which seems contrary to his previously statements indicating he had been able to make repayments for a time because both he and his wife were working). He then changed his evidence when queried about why his wife didn’t just repay his claimed contribution from the proceeds of the sale. Given the consequences for the applicant and his family from the claimed debt, he displayed a remarkable apparent lack of interest in recovering the claimed debt from his ex-wife, which would seem to be the most likely route to resolving the issues he claimed he and his family were facing from loan sharks.
Fourth, the applicant’s evidence regarding the claimed loan was vague and improbable. He could not state what the interest rate on the loan was. The initial monthly repayment he quoted indicated an interest rate of just 1.25% per month, which is low given the DFAT report states that loan shark interest rates are high and often extortionate.[6]
[6] DFAT Country Information Report, Vietnam, 13 December 2019, section 2.49.
Fifth, the applicant’s evidence regarding the death of his father was vague and unsupported by any corroborating evidence, such as a copy of a death certificate, police statement or a supporting statement from his mother. Even though the claimed incident would have been around the time the applicant made his protection visa application (approximately two years ago), the applicant could not give a clearer sense of when his father died, and as noted above, his written statement indicated his father had gone into hiding with friends in Vung Tau in southern Vietnam, not that his father and mother had moved to live with relatives in Da Nang, as the applicant claimed at the hearing, or that loans sharks had traced them to Da Nang and had threatened his father that he would be killed if the applicant did not recommence making repayments on the claimed loan. Furthermore, the applicant did not explain why his mother is not being harassed, threatened or harmed by loan sharks and/or their agents if she is continuing to live in Da Nang, he is sending her money, but he is not making repayments on the claimed loan.
Sixth, while the applicant could not provide a clear timeline regarding when the relationship with his ex-wife ended, given the house [was] last sold in May 2016, it would seem likely that, if his claims were true, the relationship would have ended before this time. Despite this, the applicant did not make a protection visa application until 14 November 2019, over three years later. The Tribunal considers this delay is inconsistent with the applicant having a fear of serious or significant harm should he have to return to Vietnam.
As the Tribunal finds that the applicant’s claims to owe money to a division of the local Communist Party government authorities and/or a triad gang and/or loan sharks have been concocted, the Tribunal finds that he does not have a debt to any of these entities and concludes that he does not face a real chance of suffering treatment amounting to persecution involving serious harm from any of these entities and/or their criminal gang agents or associates, should he return to Vietnam.
Accordingly, the Tribunal finds that the applicant does not require the protection of the Vietnamese authorities should he return to Vietnam.
The Tribunal has considered the applicant’s comments at the end of the hearing that if he has to return to Vietnam he does not know what he will do as he has been in Australia for over ten years and there will be no-one to support his mother. While the Tribunal accepts that the applicant has been working in Australia, has likely been earning much better money in Australia than he could in Vietnam, and may have been sending money from Australia to Vietnam to help support his mother, the Tribunal does not accept that the applicant will be unable to find shelter and work in Vietnam and contribute to the support of his mother, along with his siblings, if he returns to Vietnam.
The Tribunal accepts that the applicant may suffer some economic hardship and stress should he return to Vietnam. However, considering the applicant’s personal circumstances as a relatively young and healthy man who has shown resilience by coming to Australia and establishing and supporting himself here, in a different culture, for over ten years, and noting that he has [siblings] (who he indicated are in employment) as well as his mother in Vietnam, the Tribunal does not accept that the applicant will become homeless and/or be without food or other basic needs if he returned to Vietnam. The Tribunal does not accept that any hardship and stress the applicant might suffer would amount to serious harm. The Tribunal finds there is nothing to indicate or suggest there is a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act (that is, for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion), should he return to Vietnam.
Refugee criterion
Given the Tribunal’s findings above, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from a division of the local Communist Party government authorities and/or a triad gang and/or loan sharks and/or their criminal gang agents or associates, employers, or any other agency, organisation, group or individual, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Vietnam now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from a division of the local Communist Party government authorities and/or a triad gang and/or loan sharks and/or their criminal gang agents or associates, employers, or any other agency, organisation, group or individual.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to Vietnam, including feelings of emotional distress and/or humiliation due to his economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.
Member of the same family unit
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.
Paul Windsor
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 5317

3 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction