2104739 (Refugee)

2104739 (Refugee) [2021] AATA 2175 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2104739
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Tamara Hamilton-Noy
DATE:13 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2021 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Vietnam – Formosa environmental disaster – participation in one or more protests during 2016 – loan shark – assault and hospitalisation – credibility concerns – inconsistent evidence – effective state protection measures – to make a better life for family – current economic situation – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 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 on 12 April 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is currently in immigration detention, applied for a protection visa on 25 March 2021.
Claims and evidence
Evidence before the Department
In his written protection application, the applicant stated that he had left Vietnam to make a better life for his family. He stated that he did not experience harm in Vietnam, but fears returning because he borrowed money and cannot repay the loan in full. He is unsure whether the authorities in Vietnam can protect him and he doesn’t think he can relocate within Vietnam because Vietnam is not large and people can find him.
The applicant provided eight pages of documents to the Department, all in Vietnamese and without translation. The relevance of the documents, and weight placed on the documents by the Tribunal, is discussed further below.
The applicant was not interviewed by the Department. A delegate of the Department found that the applicant is not a refugee as his claimed fear of harm is not for one of the reasons set out in s.5J(1)(a); and that he is not owed complementary protection because he could obtain protection from the authorities against lenders, such that there would not be a real risk he would suffer significant harm, and that there is no evidence he would be unable to subsist if he returns to Vietnam.
Evidence before the Tribunal
The applicant attended a Tribunal hearing on 10 May 2021 and gave evidence on affirmation. At the time of the hearing, the applicant was in detention in [an immigration detention centre]. and the Tribunal Member was in Melbourne and the hearing was conducted by MS Teams video. The Tribunal was assisted during the hearing by a Vietnamese interpreter. The Tribunal found the video view and audio to be clear throughout the hearing and noted that the applicant’s answers were responsive and appropriate to the questions being put to him. The Tribunal was satisfied from the answers given by the applicant that he was able to give evidence and present arguments to the Tribunal throughout the hearing.
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment, reasons and findings
The applicant travelled to Australia on a Vietnamese passport and has consistently maintained that he is a citizen of Vietnam. The Tribunal hearing was conducted with the assistance of a Vietnamese interpreter. The Tribunal accepts the applicant is a Vietnamese citizen and has assessed his claims against Vietnam as his country of nationality.
The applicant’s background
The information provided by the applicant at hearing about his background was consistent with his written claims. The Tribunal accepts the evidence of the applicant that he is a [age]-year-old, born in Ha Tinh province, who has a wife and [number of] children residing in Vietnam. The Tribunal accepts that the applicant’s wife and children are currently living with his parents in a village in Ha Tinh and that he has [number of] younger siblings, also living in Ha Tinh.
The Tribunal is prepared to accept the applicant’s evidence that, after high school, he completed a diploma in [Discipline 1] at a TAFE-style institution and that he worked overseas in [Country 1] between 2005 and 2010, as a [Occupation 1]. The Tribunal accepts that the applicant worked for a [Country 2] company from 2010 to 2013 and then as a [Occupation 2] in Vietnam. The Tribunal is prepared to accept that the applicant set up a company structure in 2014 in the name of ‘[Company 1]’ but that the company had financial difficulties and became bankrupt in late 2014. The Tribunal is prepared to accept that the applicant borrowed money from a bank in 2014 after his company experienced financial difficulties and that the applicant subsequently sold his house and other possessions to repay the bank loan. The Tribunal accepts the evidence of the applicant that the bank loan is repaid and that he does not owe any money to the bank. The Tribunal finds that the applicant does not fear returning to Vietnam because of a former bank loan that has now been repaid.
Claims relating to the Formosa environmental disaster
The applicant raised for the first time at hearing that, after losing his company, he had to change his livelihood and he became a [Occupation 3]. The applicant raised for the first time at hearing that, due to the Formosa environmental disaster in April 2016,[1] he experienced a lot of problems. He gave evidence that ‘they had tried to stand up for themselves’ and had asked Formosa to pay a compensation amount, but the government had arrested them. The Tribunal asked about the applicant’s experiences specifically and he stated that he had been arrested but not charged and released in 2016 on the basis that he would not participate in any further demonstrations. The Tribunal observed during the hearing that this aspect of the applicant’s claims had not been referred to at all in his written claims for protection and that he had said in his claim that he had not experienced any harm in Vietnam.
[1] In April 2016, toxic discharge from a steel plant poisoned Vietnam’s coastline, referred to as the Formosa environmental disaster (DFAT Country Information Report Vietnam, 13 December 2019, at 2.4).
The Tribunal accepts that the applicant completed his protection application while in immigration detention. The details in the application as to his reasons for seeking protection are scarce. Given this, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that he participated in one or more protests during 2016 following the Formosa environmental disaster, that he was detained briefly by the police after being arrested in 2016, and that he did not receive any formal charges arising from this incident. The Tribunal finds that, after 2016, the applicant did not have any further contact with the authorities in relation to the protest activity he had taken in. The Tribunal accepts the applicant’s evidence, given at the hearing, that he left Vietnam legally on his own passport.
Country information considered by the Tribunal states that citizens continue to protest in Vietnam, despite legal restrictions and often-severe responses from the authorities. Hundreds of residents from central provinces protested regularly in the months following the 2016 Formosa disaster, with some reportedly beaten and arrested by police. DFAT assesses that activists known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. The risk is higher for those engaged in areas considered politically sensitive or with established links to outlawed political organisations. Low level protestors face a moderate risk of harassment from authorities.[2]
[2] DFAT Country Information Report Vietnam, 13 December 2019, at 3.50 & 3.56.
The Tribunal discussed the above information with the applicant during the Tribunal hearing, and observed that the applicant had not protested since 2016 and had been able to leave Vietnam legally. The Tribunal observed that it could not see the applicant would be at risk of harm in Vietnam because he had participated in protests in 2016. The applicant stated in response that in 2016 everyone knew about Formosa and that when he changed career, the businesses were banned and he opposed the government.
The Tribunal finds that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant does not have a profile with the authorities as an individual who is organising or involved with protest activity or who is linked to protests considered politically sensitive. The Tribunal finds that the applicant was not charged when he was arrested by authorities in 2016 and does not have a record relating to any protest activity. He does not have any links with outlawed political organisations. His ability to leave Vietnam on his own passport suggests he is not of any interest to the authorities because he participated in one or more protests in 2016, specifically in relation to the Formosa conflict. The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because he participated in, and was arrested due to, protest activity in 2016.
Claims relating to a private loan
The applicant’s written claims, which included that he had borrowed money, were very limited. The Tribunal asked about the written claim form at hearing and the applicant initially told the Tribunal that he had completed the application himself. He then stated that he had ‘checked with a person whose English was pretty good’. When asked if he knew the contents of the application, he then stated that he doesn’t know clearly because he asked other people to fill the form in for him. He then gave evidence that it was not him but an Indian national in the detention centre who had completed the form.
The applicant gave evidence at the hearing that he had borrowed [amount] dong from a loan shark and that, in 2019 after returning from a boat trip, he had been assaulted and attacked after not having the money to repay the debt. The Tribunal observed during the hearing that the applicant’s protection application had said ‘no’ to the question of whether he had been harmed in Vietnam. The Tribunal observed that the applicant had given evidence that he had participated in the preparation of the written protection application and that it was having difficulty understanding why the applicant wouldn’t have included details of an assault in the application. The applicant stated in response that he had asked them to put the information in.
The applicant gave evidence that he fears the loan shark if he returns to Vietnam. He gave evidence that the total amount owed now is [amount] dong and that he does not have the money to repay this. He claimed that the loan shark could ask a gangster to do a lot of damage to him and he doesn’t have the protection of the government because he has bad credit with them.
The Tribunal asked the applicant about the details of the amount borrowed and he said that [amount] dong was borrowed in April 2014 from [Mrs A], who always provides loans with interest. He signed a credit note, which is one of the documents (in Vietnamese) that he had provided to the Department. The Tribunal asked about the repayment requirements contained in the credit note, which had not been translated into English, and the applicant stated that he cannot remember, but he remembers the interest rate is 20% and the terms were to repay within two to three years. He then stated that his company went bankrupt and he couldn’t do so. He said that he has not been able to repay [Mrs A] at all because when he sold his house and assets, he repaid the bank loan so that the bank would register the company as bankrupt.
The Tribunal asked about the claimed assault and the applicant gave evidence at the hearing that he had been beaten up in 2019. He stated that a friend had invited him for a meal in a restaurant and ‘the debtor’ (male) saw him and asked him to pay back the money. He stated that ‘on the way, he probably informed gangsters’ and they went on motorbikes and beat him up. He fell onto the road and lost consciousness and someone took him to the emergency department. He stated that he was first taken to a local hospital, then a provincial hospital and then transferred to a hospital in Hanoi, then back to the provincial hospital. He stated he was in hospital for a month in total and that ‘before he regained consciousness, he couldn’t afford to stay so had to go home’. He stated that his father told him he had lost consciousness for over 10 days, but he does not have any memory until a month after; he had taken a year to recover from the assault. He stated he had provided medical reports to the Department. The Tribunal observed that no documents had been translated into English and the Tribunal therefore did not know what any of the documents referred to. The applicant stated that he had asked his wife to collect his paperwork and send it to him from Vietnam.
The Tribunal asked about the lender, [Mrs A], and the applicant stated that her son is [Mr B] and he doesn’t know whether the company is legitimate, but he can see that a lot of people have asked her for a loan. He stated that it was [Mrs A]’s son, [Mr B], who saw the applicant in the restaurant. He stated that he did not have contact with them after 2019 because he stayed at home, but he has had a lot of threats that if he doesn’t repay, they would probably put a report to the police so he can be jailed. The Tribunal asked the applicant how he could be put in jail because of a private debt and he said if he doesn’t repay it is an offence. The Tribunal asked what offence it is and the applicant stated these are the threats they made to him and that if he can’t repay, the police will investigate. The Tribunal observed that a private debt is not a criminal offence and the applicant stated in response that he is scared because he has been beaten once and if he returns with no money, they have told him they will beat him up again.
The Tribunal asked whether the applicant had reported the assault to police in 2019 and he said he did report it, but they said there was no evidence because nobody saw anything. The Tribunal observed it was having difficulty accepting the police would not have investigated if the applicant had been unconscious for 10 days as he claimed and he stated in response that the police had tried to tell him they investigated but there were no witnesses. The Tribunal observed that the applicant had said that someone had found him and taken him to hospital, so there was a witness. The applicant then stated that the person had advised his family to take him to hospital. The Tribunal asked who had taken the applicant to hospital and he said he doesn’t know but it was probably his family. The Tribunal observed that the applicant had earlier said that the person who found him had taken him to the emergency department and that applicant stated that the person and his family together took him to hospital.
The Tribunal observed that none of this information had been included in the protection application. The Tribunal noted that the applicant claimed to have a copy of the agreement entered into with [Mrs A], that he had recognised her son at a restaurant before the claimed assault, that he claimed to have hospital records about the assault and that he had given evidence that there had been a witness who had either taken him to hospital or had told his family to take him to hospital. The Tribunal observed it was having difficulty understanding why the police would not investigate given this evidence, and that it may have difficulty accepting the applicant was assaulted in 2019. The applicant stated in response that he sustained a head injury and his memory is not as good as it used to be.
The Tribunal observed that the applicant had given varying evidence that an individual had taken him to the emergency department, that the person had told the applicant’s family to take him and that, when asked about these inconsistencies, the applicant had then given evidence that both the person and his family took him to hospital. The Tribunal observed that the inconsistencies in the applicant’s evidence may cause doubt for the Tribunal that the applicant was assaulted or was unconscious for 10 days, or that he took a year to recover, or that he would be at risk of assault from a loan shark if he returns to Vietnam. The applicant stated in response that he doesn’t know if the person took him to hospital or informed the family.

The Tribunal has carefully considered the evidence given by the applicant at hearing about the loan he states he entered into with [Mrs A], his claimed inability to repay the loan and his claims to have been assaulted and hospitalised in 2019.
The mere fact that a person claims fear of 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 remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-170).
The Tribunal is prepared to accept that, following difficulties with his company, the applicant entered into a loan with a ‘[Mrs A]’ in or around 2014 and that he subsequently [worked] to earn money to repay the loan.
However, the discrepancies in the applicant’s evidence lead the Tribunal to doubt that the applicant was seriously assaulted to the point where he was unconscious for ten days, or that he was hospitalised for a month after the assault and took a year to recover.
Firstly, the applicant’s failure to include information about the assault in his written claims for protection leads the Tribunal to doubt the credibility of his evidence on this point. The applicant gave varying and irreconcilable evidence about whether he had completed the protection application or someone else had completed it for him. His evidence was both that he had completed the form and that someone else in the detention centre had done so, using information he had provided. The written protection claims stated that the applicant had not experienced harm in Vietnam. The applicant’s failure to outline a significant assault that left him hospitalised as part of his written claims leads the Tribunal to doubt that he was assaulted and hospitalised as claimed.
Secondly, the applicant’s inconsistent evidence about who took him to hospital adds further doubt for the Tribunal about his claims to have been assaulted and hospitalised. The applicant first claimed that someone found him and took him to the emergency department. It was only when the implausibility of the applicant’s claims that the police did not have any evidence was put to him that he then claimed his family had been involved in taking him to hospital. The Tribunal finds that the applicant varied his evidence as the implausibility of his account was put to him. Further, the Tribunal had difficulty accepting that, if the applicant was unconscious as he claims, a stranger who found him would have known how to contact his family to tell them to take him to hospital. The Tribunal did not accept the applicant’s claim to have memory problems explains the discrepancies in his evidence, on the basis that the claim was only made when the inconsistencies in the applicant’s evidence were put to him.
Thirdly, the Tribunal considers it implausible that the police would not investigate such a significant assault in circumstances where the applicant had documentary evidence of what he claims are a loan and his hospitalisation and where a witness was present who observed the injuries to him. The applicant’s account of the police’s response to what he claims was a significant assault leading to a prolonged period of hospitalisation add further doubt for the Tribunal about the credibility of the applicant’s claims.
For these reasons, while the Tribunal accepts the applicant borrowed money while living in Vietnam, it does not accept the applicant was seriously assaulted and hospitalised in 2019 as a result of being unable to repay the loan. Because of the concerns about the applicant’s credibility, while the Tribunal accepts the applicant has provided a number of documents to the Department in Vietnamese, the Tribunal does not accept the documents are evidence that the applicant was assaulted and hospitalised as he claims.
Despite the concern of the Tribunal about the applicant’s credibility, the Tribunal is prepared to accept the applicant owes [amount] dong to a private individual that he borrowed money from before he left Vietnam and that he was threatened with harm if he did not repay the debt. The Tribunal is prepared to accept that one of the untranslated documents provided by the applicant to the Department sets out the loan agreement between the applicant and [Mrs A] and that the applicant has not repaid the amount borrowed.
Illegal moneylending is a widespread problem in Vietnam, due to the complicated nature of borrowing money from banks. People are able to borrow money from illegal moneylenders with very little collateral and sometimes without providing personal information or a guarantee other than a signature. Interest rates are not usually written on loan papers, making it hard for people to keep track of how much they owe and difficult to prove the loan or interest rate. Interest rates are often extortionate and many times the value of the amount borrowed. People unable to repay loans may be subject to harassment, kidnapping, assaults or forced to sell houses or assets. Other reports indicate that people may be trafficked and forced into labour or sex work.[3]
[3] UK Home Office, Country Policy and Information Note, ‘Vietnam: Fear of illegal moneylenders’, December 2018 at 2.4.2.
The police force in Vietnam is made up of the People’s Security Force and the People’s Police Force, and operates at national, provincial, district and commune levels. Corruption is reported to be prevalent in the ranks of the police force, with reports of groups bribing local police and police using thugs to harass political activists. DFAT assesses that the police have a limited ability to provide protection to civilians, particularly at the commune level, and are vulnerable to corruption and typically act with impunity.[4]
[4] DFAT Country Information Report Vietnam, 13 December 2019, at 5.6 & 5.9.
However, Vietnamese authorities are reported to be trying to crack down on illegal moneylending, with some provinces setting up special police units. Police have increased investigations into alleged loan sharks and some areas are trying to increase public awareness of the risks to deter people from taking out illegal loans.[5] Numerous media reports between 2016 and 2019 have reported on investigations and arrests of loan shark operations. The UK Home Office reports that, in generally, the state appears willing and able to offer protection from harm feared by lenders.[6]
[5] UK Home Office, Country Policy and Information Note, ‘Vietnam: Fear of illegal moneylenders’, December 2018 at 2.5.2.
[6] UK Home Office, Country Policy and Information Note, ‘Vietnam: Fear of illegal moneylenders’, December 2018 at 5.2.1 & 2.5.3.
The judicial system in Vietnam is made up of a two-tier court system. While reforms have given the judiciary some independence from government, there are reported ongoing concerns with training and pay for judges. DFAT assesses that the judicial system in Vietnam has limited capacity to provide state protection and cannot be relied upon in cases that are politically sensitive. Further, corruption may impact the prospects of a fair trial.[7]
[7] DFAT Country Information Report Vietnam, 13 December 2019, at 5.10 & 5.15.
The Tribunal summarised and discussed the above information with the applicant at the hearing. The Tribunal observed that it may consider that effective protection measures are available to the applicant from any harm feared from the lender. The applicant stated in response that he hopes Australia will give him protection and if he returns, he cannot work to repay the debt.
The Tribunal accepts that the applicant owes money to a private individual and that he faces threats, harassment and possible physical ill-treatment if he is unable to repay the loan upon return to Vietnam. The Tribunal is not satisfied that the applicant faces a police investigation or charges because of defaulting on a private loan with [Mrs A].
However, the Tribunal considers that there is an appropriate criminal law in place that allows the police to investigate and prosecute lenders. Despite systemic limitations in the police system, the police have been willing and able to act on behalf of borrowers against lenders. Similarly, while the judicial system is described as having limited capacity, this appears to impact, in particular, cases that are politically sensitive. The Tribunal finds that, with respect to criminal cases against lenders in Vietnam, there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Given the media reports outlining that police have taken action against lenders over a number of years, the Tribunal finds that the applicant could access protection and that the protection is durable. The Tribunal finds that effective protection measures are available to the applicant in Vietnam and, for this reason, the Tribunal is not satisfied the applicant faces a real chance of persecution if he returns to Vietnam, now or in the reasonably foreseeable future, because he owes money to a lender in Vietnam.
Claims relating to making a better life for his family
The applicant’s written claims included that he left Vietnam to make a better life for his family. The applicant did not advance these claims at hearing. Given the written claims of the applicant, the Tribunal discussed the following country information with him during the hearing.
Vietnam’s rapid economic transformation has contributed to significant improvements in health, education and poverty outcomes.[8] Vietnam is described by the World Bank as one of the most dynamic emerging countries in East Asia. Economic reforms launched in 1986 have transformed Vietnam from one of the world’s poorest economies to low middle-income status over a 25 year period. Vietnam has one of the world’s fastest growing economies.[9] Vietnam minimised the economic damage from the COVID-19 pandemic in 2020 and was the only South East Asian nation expected to grow in 2020, attributed to the government’s decisive steps in containing the health and economic fallout from the pandemic. The International Monetary Fund is predicting a strong economic recovery in 2021, with growth projected to strengthen.[10]
[8] DFAT Country Information Report Vietnam, 13 December 2019, at 2.4.
[9] DFAT Country Information Report Vietnam, 13 December 2019, at 2.8.
[10] BBC News, ‘Vietnam economy is Asia’s shining star during Covid’, Tim McDonald, 19 November 2020 at
Vietnam’s poverty rate reduced from 20.8 per cent in 2010 to 9.8 per cent in 2016. Reductions in poverty have been particularly pronounced amongst Vietnam’s ethnic minorities. Individuals regarded as poor are eligible for social assistance benefits from 60 years of age, although there are major gaps in coverage. Plans approved in 2018 aim to increase the coverage and levels of social protection. In 2018, the World Bank reported that Vietnam’s employment rates were high and unemployment rates were very low compared to global standards. Labour force participation rates are high for men and women, although job quality is described as low.[11]
[11] DFAT Country Information Report Vietnam, 13 December 2019, at 2.9 – 2.10 & 2.14.
Health outcomes have generally improved in recent decades in line with Vietnam’s considerable economic growth, although there is a growing disparity in health outcomes between higher and lower socioeconomic groups and between urban and rural areas.[12] Education in Vietnam is compulsory from five to 14 years of age and the national education policy provides universal access to education and ensures minimal conditions are met in every primary school.[13]
[12] DFAT Country Information Report Vietnam, 13 December 2019, at 2.20.
[13] DFAT Country Information Report Vietnam, 13 December 2019, at 2.33.
The above information was summarised and discussed with the applicant at the hearing and the Tribunal observed that the Tribunal could not see from this information that the applicant would face serious harm or significant harm because of wanting a better life for his family. The applicant stated in response that he has a fear for his safety, or he would not have jumped off the ship.
The Tribunal finds that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant would return to reside with his parents, wife and children at his parents’ address in a village in Ha Tinh province, where his [number of] siblings also reside locally. The Tribunal has accepted that the applicant sold his house and other assets to repay a bank debt in or around 2014 and therefore that he has no home of his own to return to. However, the applicant has a TAFE-equivalent diploma and a long history of employment as a [Occupation 1] in Vietnam and [Country 1], in addition to a history of being able to find employment in other areas including [Occupation 3] and [Occupation 2]. Vietnam is described as having made significant improvements in health, education and its economic situation, has reduced poverty levels, and has navigated the COVID-19 pandemic well during 2020 and into 2021. Vietnam is described as having high employment and very low unemployment rates. The Tribunal finds that, given the employment rates in Vietnam and its current economic situation and the applicant’s qualification and employment history, the applicant could expect to find employment upon return to Vietnam.
The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, because of wanting a better life for his family, having regard to the instances of serious harm set out in s.5J(5).
Returnee to Vietnam
Given the circumstances of the applicant, who is currently in detention, the Tribunal also considered whether he would fear harm as a failed asylum seeker who had arrived in Australia by jumping from a boat offshore.
The Vietnamese Penal Code provides that fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration is a criminal offence and is punishable by imprisonment. However, DFAT is unaware of any instances where these provisions have been used against failed asylum seekers returned from Australia and returns are generally done on the understanding that individuals will not face charges are a result of making a protection application. A Memorandum of Understanding, signed in 2016 between Australia and Vietnam, provides for the return of Vietnamese nationals, including those intercepted at sea. DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam, that this process generally takes one to two hours, and that the process focuses on obtaining information about illegal movement. DFAT is unaware of any cases in which returnees from Australia have been held overnight for this purpose.[14]
[14] DFAT Country Information Report Vietnam, 13 December 2019, at 5.28 – 5.31.
Returnees typically face difficulties upon return, including unemployment or underemployment, and challenges accessing social services, particularly where household registration has ceased. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks where they are unable to repay their loans. Indebtedness is reportedly lower among people living in irregular maritime hotspots, including Ha Tinh province, because low or no-interest loans are generally organised within the community; others who travel from outside such provinces tend to have fewer connections and therefore tend to borrow from external lending groups who demand high interest rates.[15]
[15] DFAT Country Information Report Vietnam, 13 December 2019, at 5.33.
DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves and that such individuals are unlikely to be subjected to penalties for illegally departing Vietnam. DFAT assesses that long-term detention, investigation and arrest is generally conducted only in relation to person suspected of involvement in organising people-smuggling operations.[16]
[16] DFAT Country Information Report Vietnam, 13 December 2019, at 5.35.
The above information was summarised and discussed with the applicant during the Tribunal hearing. The applicant stated to the Tribunal that, at the moment, he is fearful of reprisal by the loan shark and he is seeking a humanitarian visa from Australia.
The Tribunal finds that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant would be questioned upon his arrival in Vietnam but is unlikely to be held overnight or prosecuted for leaving Vietnam. The Tribunal accepts the evidence given by the applicant at hearing that he believes the Department has his passport and that he continues to have valid household registration in Vietnam. The Tribunal finds that the applicant did not pay a people smuggler for his travel to Australia, because he was employed on the boat the he jumped off, off the coast of [City 1], and therefore did not need to pay for irregular maritime travel to Australia. The Tribunal has found that the applicant could find employment upon return to Vietnam, given his qualifications and work history. The Tribunal finds that being questioned for one to two hours upon return does not amount to serious harm, having regard to the instances of serious harm set out in s.5J(5).
The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to Vietnam now or in the reasonably foreseeable future, as a failed asylum seeker or because he arrived in Australia by jumping off a boat off the coast of Australia.
The Tribunal has also considered the cumulative claims of the applicant; however, is not satisfied that the applicant faces a real chance of persecution for any reason.
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal accepts that, if he returns to Vietnam now or in the reasonably foreseeable future, the applicant returns as an individual who was arrested in 2016 due to protest activity, who travelled to Australia to make a better life for his family, as an individual who owes money from a private loan and as a returnee and failed asylum seeker.
In addition to the country information set out above, the Tribunal also discussed country information with the applicant during the hearing that states that financial institutions are reportedly stepping up to help borrowers, including finance firms who are able to offer unsecured loans and banks providing loan packages to help poor customers in emergencies.[17] The Tribunal observed that the applicant may be able to access such assistance such that he would not face serious harm or significant harm in Vietnam. The applicant stated in response that he cannot borrow from a bank because he has nothing to use as a mortgage.
[17] Vietnam Investment Review, ‘Vietnam fights against loan sharks who are wrecking thousands of lives across Vietnam’, 12 March 2019 at

For the reasons set out above, the Tribunal has found that the applicant would return to live with his parents, wife and children and that he would be able to find employment upon return, given his qualifications and employment history in Vietnam. The Tribunal finds that the applicant could obtain an unsecured loan from a financial institution or bank in Vietnam that does not require him to use a house or other assets as security for the loan. While the Tribunal has accepted the applicant has faced threats from [Mrs A] prior to leaving Vietnam, the Tribunal finds that the applicant’s ability to access an unsecured loan would enable him to repay the money borrowed from [Mrs A] and means that he would face less than a real risk of significant harm from [Mrs A] and her associates. The Tribunal does not accept the applicant would face attention by the police because of defaulting on a private loan with [Mrs A]. The Tribunal finds that any financial hardship faced by the applicant in obtaining a loan to repay [Mrs A] does not amount to significant harm as defined in s.36(2A).
The Tribunal is not satisfied the applicant faces a real risk of arbitrary deprivation of his life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, if he returns to Vietnam now or in the reasonably foreseeable future, because he was arrested from protest activity in 2016, because he travelled to Australia to make a better life for his family, because he owes money from a private loan, because he would be a failed asylum seeker, or for all of these reasons considered cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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 2175

13 May 2021

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