2105775 (Refugee)

[2021] AATA 2283

2105775 (Refugee) [2021] AATA 2283 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105775

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jason Pennell

DATE:24 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2021 at 8.57pm       

CATCHWORDS
REFUGEE – protection visa – Vietnam – member of particular social group – people owing money to business creditors and money lender – borrowed money to pay for partner’s father’s operation – chased and threatened, and contacted while in Australia – no documentary evidence provided – credibility – delay in applying for protection – applied after overstaying tourist visa and lengthy period as unlawful non-citizen – inconsistent evidence – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1)(a), 5AAA, 5H(1), 5J(1), (2), 5K, 5L(c), 36(2), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

Guo v MIEA; Pan v MIEA (1996) 64 FLR 151

Kavan v MIMA [2000] FCA 370

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Selvadurai v MIEA (1994) 34 ALD 347

Subramanium v MIMA (1998) VG310 of 1997

Zhang v RRT [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 April 2021 to refuse to grant the applicant a Class XA (Subclass 866) protection visa (protection visa) under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of Vietnam, applied for the visa on 11 April 2021. The delegate refused to grant the visa on 29 April 2021. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act and  not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

3.The applicant is currently detained at [Facility] in Victoria, Australia.

4.The applicant appeared before the Tribunal on 9 June 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. The hearing was held by via conferencing facilities using the Microsoft Teams program facilitated by [Facility].

5.The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6.For the following reasons, the Tribunal has concluded the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

Applicant’s identity

1. The applicant claims that she was born on [Date] in [District], Quang Tri Province, Vietnam.[1] The applicant provided the Tribunal and the Department with a copy of the biodata page of her Vietnamese passport that confirms the date and place of the applicant’s birth.[2] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

   [1]    Applicants Protection visa application dated 11 April 2021, Department file [Number], Doc ID No: [Number 1]

   [2]    Tribunal file, Doc ID No: [Number 2]

2. The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Vietnam and as such her protection claims will be assessed against Vietnam as the country of reference and ‘receiving country’ respectively.

Migration history

1. [In] November 2018 the applicant arrived in Australia on a FA-600 Tourist visa (‘the applicant’s tourist visa’).[3] The applicant’s tourist visa ceased [in] February 2019, and according to Departmental records the applicant remained unlawful in Australia for 26 months until she applied for a protection visa on 11 April 2021.[4] The applicant has been in Australia for 2 years and has not departed since her arrival.[5]

   [3]    Department of Home Affairs – Integrated Client Services Environment (ICSE) records

   [4]    ibid

   [5]    ibid

2. On 11 April 2021 the applicant lodged a protection visa application which was refused by the Department on 29 April 2021.[6]

   [6]    Applicants Protection visa application dated 11 April 2021, Department file [Number], Doc ID No: [Number 1]

3. The applicant is currently on a Bridging Visa E (WE 050) and was granted this visa on 23 April 2021.[7]

Applicant’s evidence

[7]    Department of Home Affairs – Integrated Client Services Environment (ICSE) records

1. The applicant on her protection visa application form that she has a [father] born [Date] and [mother] born [Date], both of whom reside in Vietnam. The applicant’s evidence was that she has [siblings] who also continue to live in Vietnam.  She claims that she is in contact with her parents on a weekly basis.[8]

   [8]    Applicants Protection visa application dated 11 April 2021, Department file [Number], Doc ID No: [Number 1]

2. The applicant stated in he protection visa that she speaks, reads, and writes Vietnamese. And that she belongs to the Kinh ethnic group and is of the Catholic faith.[9]

   [9]    ibid

3. The applicant claims she was educated in Vietnam[10] having attended primary school at [Primary School] from [Date] to [Date]; and [Secondary School] from [Date] to [Date]. Her evidence to the Tribunal was that she attended University in Da Nang City at which she completed [a qualification].

   [10] ibid

4. The applicant claimed in her protection visa application that she was self-employed between [March] 2008 and [November] 2018 working in her family’s business in the ‘retails mixed merchandise’ industry in a general sales/distribution duties capacity. The applicant stated that in periods of unemployment she was mainly supported by her parents.[11]Contrary to the information provided in her protection visa application the applicant’s evidence to the Tribunal was that  after University she worked as [an Occupation] at [Workplace 1] in Da Nanng City, Vietnam, approximately 200km from her family’s home.

   [11] ibid

5. The applicant’s evidence was that she travelled to Australia because a friend had invited her to visit. As a result, she initially arrived in Australia on a tourist visa. The applicant claims that at the time her visa expired she was abandoned by her friend and she could not afford to renew her visa. As a result, she remained in Australia as an unlawful non-citizen.  However, the applicant claimed in her protection visa application that in the period of [November] 2018 to 9 April 2021, she was financially self-supported and had travelled around Australia.[12]

   [12] ibid

6. The applicant’s evidence to the Tribunal was that she made a protection visa application on the advice of her lawyer as a way of remaining in Australia. In circumstances where the applicant had relied on the advice of her lawyer to make her protection visa application, the applicant agreed with the Tribunal that she did not have a well-founded fear of persecution if she was returned to Vietnam.

7. Nevertheless, the applicant stated that she did have creditors in Vietnam who she stated she would have to avoid. She claimed that she did not want to return to Vietnam and that her creditors would look for and would give her trouble and her parents trouble. The applicant then claimed that she owed $US[Amount] from a money lender at high interest. She claimed she borrowed the money from a [shop] known as [Name]. She claimed that she borrowed the money for her then [Country] [partner]. His father was suffering from [medical condition] and he wanted the money to pay for his father’s operation. As a result, she claims that she borrowed the money and gave it to her partner. He returned to [Country] but did not return to Vietnam.  As a result, she is now responsible for the debt.

8. The applicant was not able to provide the Tribunal with any evidence of having borrowed the money. She claimed that she received the money in cash. She claimed that at the time of borrowing the money she provided the money lender with a copy of her Citizen ID Card. She claimed that she was charged ‘very high interest being more than ten (10) times more than bank interest.’

9. The applicant then claimed that she worked for five months to pay the interest on the loan. She claimed that she came to Australia on the invitation of her friend because she believed that she would be able to earn more money in Australia. However, she claims it was not as easy as she thought, and she was not able to save any money.

10. The applicant was not able to provide the Tribunal with any documentation in relation the loan. The applicant claims she commenced paying interest in relation to loan monthly in or about 2020. The applicant claimed that she had been living with a friend  [and] working in a [Workplace 2] to earn money to pay the loan. She claimed that she had sent approximately $2000 to $3000 to pay the money lender but did not keep the record of the transfer. The applicant stated that she may be able to obtain a copy form her sister. The Tribunal provided the applicant with an opportunity to provide a copy of the transfer document, but the applicant did not provide the document to the Tribunal.

11. The applicant claimed that she had been contacted by the money lender on a few occasions. She claimed that the money lender had threatened that if she did not continue to pay, they would contact her parents. Her evidence was that to date her parents had not been contacted by the money lender.

12. The applicant’s evidence to the Tribunal was that she is single and has no responsibility to go back to Vietnam. She wants to stay in Australia to work and to continue to pay her debts.

13. The Tribunal raised with the applicant that she had referred to a claim involving a land dispute in her protection visa application. The applicant stated that she had no knowledge of any land dispute. As a result, her evidence was that she did not have any claim for protection arising from a land dispute.

Claims for protection and other supporting documentation

1. The applicant first submitted claims for protection when she lodged her protection visa application to the Department on 11 April 2021.[13] The applicant’s claims are as follows:

   [13] ibid

   Provide reasons why this applicant left that country or those countries:

   ‘AFTER FINISHED SCHOOL, WORKING FOR LIVINGS, DAY BY DAY THE BUSINESS RUNNING DIFFICULTIES AND CAUSING DEBTS AND DEBTS TO MANY CREDITORS TILL AT THE END OF WALL. THEN I HAVE NO CHOICE TO HIDE AROUND AND SEEK TRAVEL OUT OF COUNTRY FOR RELEIVE AND WORKING FOR SAVING THEN REPAY THE DEBTS. AS IN THE COUNTRY THE CREDITORS CHASING AND THREATEN, SO UNSECURE DAY BY DAY. ALSO, UNFAIR LAND DISPUTED ISSUES’.

   Did this applicant experience harm in that country or those countries?

   ‘Yes’

   Give details including: the type of harm this applicant experienced, the person/people responsible for the harm, why they harmed this applicant.

   ‘AS REPORTED ABOVE, THE CREDITORS CHASING AROUND THE COUNTRY CAUSING MENTOL ISSUES AND NO WHERE TO GO OR LIVE.’

   Did this applicant seek help within the country or those countries after the harm?

   ‘No’

   Give details of why this applicant did not try to seek help.

   ‘NO FINANCIAL SUPPORTED AND FACING PROBE OF CORRUPTIONS EVERY WHERE AND ALSO THE CREDITORS EYES.’

   Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

   ‘No’

   Give details for why this applicant did not try to move to another part of the country or those countries.

   ‘NO FINANCIAL SUPPORTED AND THE LIFE THREATEN FROM CREDITORS.’

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   ‘NO FINANCIAL SUPPORTED AND THE LIFE THREATEN FROM CREDITORS.’

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   ‘Yes’

   Give details including: the type of harm or mistreatment this applicant is likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat this applicant.

   ‘AS REPORT ABOVE, WOULD BE HARM BY THE CREDITORS AND NO WHERE TO GO OR LIVES.’

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   ‘No’

   Give details about why this applicant thinks the authorities could not, or would not, protect them.

   ‘THE AUTHORITIES WOULD NOT OFFER ANY PROTECT TO NOMARL CITIZEN AS OF PRIVATE ISSUES.’

   Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

   ‘No’

   Give details about why this applicant is unable to relocate.

   ‘NO ACCOMMODATIONS, NO FINANCIAL SUPPORTED’

2. The delegate decision summarised the applicant’s claims as follows:[14]

   (a)She owes debts to many creditors. As a result, she had to hide while in country and then leave her country. She is working to repay the debts.

   (b)While she was in Vietnam, the creditors chased and threatened her, causing her insecurity.

   (c)She has ‘unfair land disputed’ issues.

   (d)She receives no financial support and is ‘facing probe of corruptions every where’.

   (e)She received threats to her life from the creditors. She fears harm from the creditors.

   (f)She does not think the authorities can and will protect her if she returns. The authorities do not offer protection for ‘private issues.

   (g)She is unable to relocate within Vietnam, as she has ‘no accommodations’ and no financial support.’

   [14]Protection Visa Decision Record dated 29 April 2021 AAT File No 2105775, Doc ID 8379346

3. The applicant did not provide the Department[15] or the Tribunal[16]  with any supporting documents in support of her protection visa application.

   [15] Department file [Number]

   [16] Tribunal file 2105775

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No.84 of 24 June 2019 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Vietnam dated 13 December 2019 (the DFAT Report) which is extracted as an attachment to this decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[17]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[18]

   [17] s.5AAA Migration Act 1958.

   [18]  MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

2. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[19] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.[20]

Applicants delay.

[19]  Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February

[20] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

1. It is legitimate for the Tribunal to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution.[21] A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[22] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[23] 

   [21] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.

   [22] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [23] Subramanium v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived in Australia [in] November 2018 tourist visa and became an unlawful non-citizen [in] February 2019. According to Departmental records, the applicant has remained unlawful in Australia for 26 months until applying for a protection visa on 11 April 2021.[24] The applicant’s evidence was that since arriving in Australia she has lived a friend [and] worked in a [Workplace 2] for cash money. 

   [24] ibid

3. The applicant’s evidence was that she did not make any application for a protection visa earlier because she had not been aware that she could make such an application and that she did not have the money.  She claimed that at the time her visa expired she was abandoned by her friend and she could not afford to renew her visa. As a result, she remained in Australia as a unlawful non-citizen. However, the Tribunal would have expected that, if the applicant had a genuine fear of persecution upon her return to Vietnam, she would have made the application for protection as soon as possible after her arrival in Australia. In circumstances where the applicant is an educated person and who was employed in Vietnam and working for cash money in Australia, the Tribunal does not accept her evidence that she was not aware she could make an application for protection or that she was not able to afford the application.

4. Rather, the applicant has remained in Australia unlawfully for a period of 26 months working for cash money and appears only to have made her protection visa application upon being detained. Therefore, in all the circumstances, the applicant’s delay in making her application for a protection visa indicates to the Tribunal that she does not hold a genuine fear of being persecuted or significantly harmed upon her return to Vietnam.

5. Therefore, given the excessive delay in making a valid protection visa application from the date of her arrival in Australia, the Tribunal has placed little weight on the applicant’s evidence in relation to her claims.

Applicant’s claims as a refugee

Membership of a Particular Social Group (PSG).

1. The applicant claims to have a well-founded fear of persecution within the scope s.5J(1) of the Act by reason of her membership of a particular social group as a person who owes money to creditors in Vietnam and as a person who owes money to a money lender in Vietnam. Section 5L of the Act[25] provides that for the purposes of the application of the Act in determining if a person has a well-founded fear of persecution a person is to be treated as a member of a particular social group if:

   [25] S.5L of the Act

   (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.

Applicant’s Creditors Claim as a PSG

1. In this case, the applicant submits that she is a member of a PSG as defined by its shared characteristic being a person who owes money to creditors in Vietnam. The applicant did not identify the creditors to whom she claims to owe money. However, she claims in her protection visa application that as a result of the difficulties in running a business her debts had built up to the point where she was at the ‘end’ of the wall.[26] However, the applicant gave no evidence of the creditors or debts that she claimed to have incurred. Therefore, in circumstances where it is normal in  trade and commerce for people to incur creditors in the course of conducting a business and in the absence of any evidence as to the identity of the creditors and the precise amount owed, the applicant cannot be said to have a well-founded fear of persecution for the purposes of s.5J(1)(a) of the Act. In the absence of any evidence that the applicant has a characteristic pursuant to s.5L(c) of the Act, the fact that she merely owes money to creditors cannot be described as an innate or immutable characteristic so fundamental her identity or conscience or that it is a characteristic that distinguishes her and the group from the rest of society.  As a result, the Tribunal does not accept that she is a member of a PSG for the purposes of s.5K of the Act. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution because of her claim of owing money to creditors in Vietnam for the purposes of s.5(1)(a) of the Act.    

   Applicant’s Money Lender Claim as a PSG   

   [26] Applicants Protection visa application dated 11 April 2021, Department file [Number], Doc ID No: [Number 1]

2. In addition, the applicant’s evidence was that she owed money to a money lender in Vietnam. Her evidence was that she borrowed $US[Amount] from the money lender (in cash) to give it to her then partner so that he could pay his father’s medical costs. The applicant’s evidence was that she had been threatened and harassed by the money lender for the payment of the loan and interest. In addition, she claimed that the money lender had threatened to approach her parents if she did not pay the money. There was no evidence that her parents had in fact been threated or harassed by the money lender.

3. The Tribunal has some difficulty accepting that the applicant, as a person who has borrowed money from a money lender, is a member of a particular social group pursuant to s.5L of the Act. It is not convinced that having borrowed money from a money lender and being threatened and harassed for repayment of the loan constitutes a shared characteristic that it would be considered innate and immutable. Nor is it a characteristic that is so fundamental to a member's identity or conscience that she should not be forced to renounce it. Finally, owing money to a money lender is not characteristic that would distinguish the group from society. Nevertheless, the Tribunal is prepared, for the purposes of this decision, to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear.

1. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[27]

   [27] Chan Yee Kin v MIEA (1989) 169 CLR 379

2. In this case, the applicant claims that she will be harmed by a money lender if she is returned to Vietnam. That is, she claims there is a real chance she will be seriously harmed by the money lender if she returns to Vietnam. For the reasons expressed below, the Tribunal has serious concerns about the applicant’s evidence in relation to the harm she claims she will suffer if she returns to Thailand and, accordingly, does not accept that the applicant holds any fear of returning to Thailand on a subjective or objective basis.

Accepted Facts

1. Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:

   (a)the applicant was born on [Date] in [District], Quang Tri Province, Vietnam.

   (b)the applicant’s father and mother both continue to reside in Vietnam.

   (c)the has [siblings] who continue to live in Vietnam.  

   (d)the applicant speaks, reads, and writes Vietnamese.

   (e)the applicant belongs to the Kinh ethnic group and is of the Catholic faith.

   (f)the applicant completed high school in Vietnam and obtained [a qualification] from University in Da Nang City.

   (g)the applicant worked as [an Occupation] at [Workplace 1] in Da Nanng City, Vietnam.

Applicant’s Land Dispute.

1. The applicant claimed in her protection visa application that she was subjected to ‘’unfair land dispute issues’ in Vietnam. However, her evidence to the Tribunal was that she had no knowledge of any land dispute. The applicant specifically stated to the Tribunal that she was not subjected to a land dispute in Vietnam and as such she did not make any claim for protection based on any claim arising for a land dispute. Therefore, based on the applicant’s own evidence, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Vietnam as a result of a land claimed as stated in her protection application.

   Applicant’s General Creditors Claim

2. The applicant by her protection visa application claimed that she would suffer serious harm if she is returned to Vietnam because of creditors she incurred because of the difficulty in conducting a business. The applicant claimed that she was chased and threatened by creditors. However, the applicant did not provide any evidence to the Tribunal of the creditors threatening or chasing her. In addition, she did not provide any evidence of mental issues she claimed she had suffered. No medical report in relation to mental health was provided. Finally, the applicant did not provide any evidence of the type of business she conducted in Vietnam. Rather, her evidence was that she had worked as [an Occupation] after having attended University. The applicant did not provide the Tribunal any details as to the identity of the creditors, the specific reason for having incurred the debt and the amount owed in relation to each creditor. As such, because of the lack of any evidence of the applicant having incurred the debts as claimed, the Tribunal does not accept the applicant incurred the creditors as claimed. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Vietnam because of her creditors as claimed.

Applicant’s Money Lender Claim.

1. The applicant claims that she borrowed $US[Amount] from a money lender (a [shop] known as [Name]) to help her boyfriend pay for a medical operation for his father. The applicant claims that she received the money in cash and gave it to her boyfriend. Her evidence was that she had to provide a copy of her National ID card to the money lender, but she was not able to provide any loan documentation in relation to the loan. In addition, despite claiming that the interest was more than ten (10) times bank interest the applicant was not able to provide the Tribunal with any evidence in relation to the interest charged on the loan. In addition, she was not able to provide any evidence of payment having been made to the money lender.  

2. The country information reports[28] that because bank loans are difficult to access, illegal money lending is widespread in Vietnam. Its reported[29] that approximately 210 loan-shark rings are operated by more than 2,000 people across the country, targeting low-income workers in urgent need of money. The main reason borrowers apply for a loan from them is because require money quickly and want to avoid the trouble of paperwork demanded by banks.[30] They are able to receive the money in a few minutes  by it being transferred directly into their bank account. In return they provide their ID, phone number and allow the app to access their phone directories. Its reported that many have become victims to these rings. A 24-year-old woman in the central highland’s province of Dak Lak said that she borrowed VND5 million ($214) in May last year, and by October the amount of money she needed to pay doubled to VND11 million ($472).[31]

   [28] DFAT Report @ p.16

   [29] Vietnamese Express. ‘Chinese loan sharks charging extortionate interest jailed by    19 August 2020, [29] Vietnamese Express ‘Chinese loan sharks infest Vietnam credit waters’  by Dat Nguyen dated 10 June 2020 Vietnam news. ‘Five people arrested in HCM City loan shark apps bust worth $4.2 million’ Vietnamese Express ‘Chinese loan sharks infest Vietnam credit waters’ by Dat Nguyen dated 10 June 2020 ibid

Its reported that Fintech (Financial Technology) company leaders who provide software and other modern technologies for automated financial services, have been calling for more stringent measures to stop loan shark rings to protect the 40 peer-to-peer lending firms which are operating legally.[32] For example NextTech Chairman Binh said that the money lending companies  were different from peer-to-peer lending firms because they do not seek depositors, only borrowers. As a result, its reported that the money lenders funds are sourced from overseas investors, namely China and not from other app users.[33]

[32] ibid

[33] ibid

It has been reported that some borrowers who have been unable to repay loans have been trafficked or forced into labour or prostitution.[34] However, police investigation into money lending activities has increased. In April 2020, a loan shark racket was busted with police arresting the five defendants following reports from people who were being threatened over delayed repayment of the loans. [35] Its reported[36] that the money lenders offered loan apps on social media like Facebook and via leaflets distributed on the street, offering people fast and easy loans with little paperwork. The apps were known as ‘vaytocdo,’ ‘Moreloan’, and ‘VDonline’. Its reported that they offered loans of over VND100 billion (around $4.26 million) at 2.5 percent interest per day, equivalent to 75 percent a month and 912.5 percent a year, more than 30 times higher than rates at local commercial banks. They employed forty (40) customer service staff who instructed borrowers on downloading the company's apps on their phones. Customers had to provide personal information including ID card information and bank account numbers; and agree to seven mandatory terms which allow the app to access phone directories.[37]

[34]  DFAT report @p.16

[35] Vietnamese Express. ‘Chinese loan sharks charging extortionate interest jailed by  19 August 2020, [35] Vietnamese Express ‘Chinese loan sharks infest Vietnam credit waters’  by Dat Nguyen dated 10 June 2020 ibid

[37] ibid

It was reported[38] that two groups of loan sharks who required their debtors to pay interest rates of up to 720 percent a year have been arrested in Vietnam’s Central Highlands Police investigation showed that the two groups had lent their money to nearly 500 people in Buon Ma Thuot City from April to August, with transactions totalling more than VND5 billion (US$216,400).

[38] Tuoitre News, ‘Vietnam police bust loan shark rings charging yearly interest of up to 720%’ dated 4 September 2020 http//tuoitrenews.vn/news/society/20200904/vietnam-police-bust-loan-shark-rings-charging-yearly-interest-of-up-to-720/56559.html

Further it was reported[39] that on 4 March 2021 a loan shark gang were arrested on charges of illegal loan-giving with annual interests at 240 to 810 percent which is much higher than permitted for civil transactions. The police apprehended seven suspects and seized 51 high-interest loan documents which were run through a money-lending service operated on Facebook called "Homebank" with absurdly high interest rates.

[39] Saigon news ‘Online loan shark gang found in HCMC, prosecuted.’dated 23 March 2021 Sggpnews.org.vn/law/online-loan-shark-gang-found-in-hcmc-prosecuted-91323.html

The applicant’s evidence in relation to the loan and the circumstances in which she arranged the loan was vague and lacking in any detail. Save to say that she borrowed $US[Amount] in cash for a [shop] as known as [Name], the applicant was not able to provide any further details of the loan. The applicant did not provide any evidence as to the existence of the [shop]. In addition, the applicant’s evidence was at odds with the country information which refers to lesser sums being borrowed, and money being paid directly into the borrower’s bank account.[40] The amount the applicant claims to have borrowed is much larger than the amount as reported to be loaned in the country information. It seems unlikely to the Tribunal that given the size of the loan ($US[Amount]), that it would have been paid to the applicant in cash. In this case, even accepting that it was borrowed prior to the use of apps as described in the country information, the Tribunal finds that it would be unlikely that such a large amount would be paid in cash to the applicant. 

[40] Vietnamese Express ‘Chinese loan sharks infest Vietnam credit waters’ by Dat Nguyen dated 10 June 2020 >

The applicant’s evidence was that she borrowed the money to give to her boyfriend to pay for his father’s operation who was suffering from [medical condition]. However, she was not able to provide any information about the operation, including, when and where it was to be performed, the condition of her boyfriend’s father (i.e. what [medical condition] he suffered), the reason for the operation. The Tribunal would have expected that in having borrowed $US[Amount] the applicant would have been better informed about the operation to be performed and the condition of her boyfriend’s father.

In any event, the applicant’s evidence was that while she was in Vietnam, she made interest payments to the money lender. However, the applicant did not give any evidence as to when and how she made such payments or to whom. In addition, the applicant claimed that while in Australia, she transferred $2,000.00 to $3,000.00 to her sister in Vietnam to pay the money lender. The applicant stated that she would be able to get a copy of a bank document from her sister to evidence the transfer. As a result, the Tribunal allowed the applicant time to provide the document. To date she has not provided any documentation evidencing the transfer of money to her sister as claimed.

1. The applicant claimed that she had been contacted and threatened by the money lenders while in Australia. She stated that they had threatened to go after her parents if she did not repay. However, the applicant did not say when the money lender contacted her. Her evidence was that her parents have not been contacted by the money lender. In circumstances where she has been in Australia since 2018 and on her own evidence has only paid $2,000.00 to $3,000.00 to the money lender on a $US[Amount] loan, there appears to be no real chance that the applicant or her parents will suffer serious harm.   

2. Therefore due to the lack of detail in the applicants evidence, the lack of documentation in relation to the loan, together with her delay in making her protection visa application, the Tribunal has concerns about the credibility of the applicant’s evidence in relation to the money lender loan as claimed. As such the Tribunal does not accept that the applicant borrowed $US[Amount] from a money lender as claimed. Accordingly, the Tribunal finds that the there is no real chance the applicant will be seriously harmed by reason of having borrowed money from a money lender as claimed.

3. Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Vietnam and finds that the applicant does not satisfy s.36(2)(a).

Complimentary protection.

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, 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'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind. That is, if there is a real risk she will be arbitrarily deprived of her life; suffer the death penalty, or torture; or be subjected to cruel or inhuman treatment or punishment; or degrading treatment or punishment.

   Applicant’s General Creditors Claim

2. The applicant by her protection visa application claimed that she would suffer serious harm if she is returned to Vietnam because of creditors she incurred because of the difficulty in conducting a business. For the reason expressed above when considering the applicants claim as a refugee under s.36(2)(a) of the Act , the Tribunal finds that there is no real risk the applicant will suffer significant harmed if she is returned to Vietnam because of her creditors as claimed.

   Applicants Money Lender claim.   

3. In addition, the applicant claimed that she would suffer significant harm because of having borrowed money $US[Amount] from a money lender at an interest rate of ten (10) times the bank interest rate. For the reason expressed above when considering the applicants claim as a refugee under s.36(2)(a) of the Act, the Tribunal does not accept there is a real risk she will suffer significant harm if she is returned to Vietnam as a result of having borrowed money from a money lender as claimed.

4. In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, that there is a real risk that they will suffer significant harm of any kind.

5. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

6. Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk she will suffer significant, including that she will be arbitrarily deprived of her life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Conclusions

1. 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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) based on 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

1. The Tribunal affirms the decision not to grant the applicants a protection visa

Jason Pennell
Senior 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

ATTACHMENT - DFAT COUNTRY REPORT – VIETNAM[41]

[41] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, 20191213145121

CORRUPTION

2.17      Vietnam ranked 116th (equal with Indonesia) out of 189 countries in the 2018 United Nations Development Programme’s Human Development Index. Transparency International’s 2018 Corruption Perceptions Index ranked Vietnam 117th out of 180 countries, higher than its neighbours Cambodia (at 161st) and Laos (at 132nd). Vietnam has a comprehensive anti-corruption legal framework, including through the Law on Anti-Corruption (2005) and several provisions under the Penal Code. Several government agencies have authority to investigate and prosecute corruption offences, but enforcement remains problematic and indictments of high-level corruption are often perceived to be politically motivated. Corruption is perceived to be widespread in the ranks of the Vietnamese police, public service sector and land administration affecting construction and development.

2.18      A number of high-profile corruption trials have been held since 2017, including those of several high- ranking officials involved in state-owned enterprises. Some economic crimes in the Penal Code, including embezzlement and taking bribes (Articles 353 and 354), can result in the Death Penalty being applied. There are provisions allowing for commutation to a life sentence when a percentage of the damages is paid back to the state. A recent case in 2017 saw the General Director and the Sales Manager of state-owned shipping company Vinashinlines sentenced to death for embezzlement.

2.19      The current administration has given particular focus to countering corruption, including through initiating more investigations into the conduct of high-profile officials, restructuring government ministries, and reviewing governance and oversight mechanisms for state-owned enterprises. The anti-corruption campaign has resulted in the removal of several high-level office holders. While some citizens have welcomed the government’s current anti-corruption campaign as a necessary reform, government critics generally consider it to be a political strategy, noting it has mostly targeted those close to former Prime Minister Nguyen Tan Dung. Some commentators have noted that, despite the government’s focus on corruption by senior officials, day-to-day corruption faced by Vietnamese people in accessing public services is still common.

SECURITY SITUATION

2.47     The MPS is responsible for domestic security and controls the national police (see Police), a special national security investigative agency, and other domestic security units. Security and law enforcement personnel are highly visible throughout Vietnam, particularly during politically sensitive occasions or potential demonstrations (see Political Activists).

2.48     Organised crime groups exist, and engage in prostitution, extortion, gambling, illicit drug trade and human trafficking. As noted in Health, illicit drug use is a growing problem and activities associated with the drug trade have contributed to an increase in the crime rate. While violence associated with the drug trade has largely been limited to rival gangs, local authorities in Hanoi have reported a rise in the level of violence associated with crimes (assaults, homicides and robberies) affecting the general population. Petty crime occurs regularly in larger cities and towns, and is reportedly increasing. The Economist Intelligence Unit’s 2017 Safe Cities Index rated 60 cities (including Ho Chi Minh City) worldwide across 49 indicators, including digital security, health security, infrastructure security and personal security. Ho Chi Minh City ranked 56th overall, ahead of Jakarta, Dhaka, Yangon and Karachi, and 58th in terms of personal security, ahead of only Caracas and Karachi.

2.49     Illegal moneylending is widespread in Vietnam, largely due to the complicated nature of accessing bank loans. Interest rates are often extortionate. A 2018 UK Home Office report found that some borrowers unable to repay loans, or their families, had been trafficked or forced into labour or prostitution. Police investigations into illegal moneylenders have reportedly increased, including through the establishment of dedicated police units in some provinces. As the high interest rates are typically not written on loan papers police face difficulties in convicting illegal moneylenders.

POLICE

5.6      The MPS manages the People’s Public Security Forces of Vietnam (PPSFV), the country’s main police and security force. It comprises two core forces: the People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration, and identification cards. Police recruits are required to be members of the CPV or Communist Youth League.

5.7      The PPSFV operates at national, provincial, district, and commune levels. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels and generally receive inadequate training in law and basic police procedures. Provincial and local police forces have a high degree of discretion in their activities. International observers report that corruption is highly prevalent within the ranks of the police. Sources have reported recent cases of organised crime groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help. Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.

5.8      The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice, police organisations operate with significant discretion and little transparency. Human rights groups have reported multiple recent cases of police abuse where officers have acted with impunity. In the rare cases where officers are prosecuted and convicted, light or suspended sentences or internal disciplinary measures such as warnings are commonly applied. There is no independent police complaint agency to investigate allegations of police abuse by ordinary citizens.

5.9      DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity.