2118126 (Refugee)

2118126 (Refugee) [2022] AATA 4430 (5 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)
CASE NUMBER:  2118126
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Wayne Pennell
DATE:5 September 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 05 September 2022 at 12:07pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – University educated – employed in a responsible and reputable position – borrowed money from loan sharks – doubts on the veracity of claims – marriage to same sex spouse – no issues about sexual orientation – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]Decision made 22/11/2021.
The applicant who claims to be a citizen of Vietnam, applied for a protection visa,[2] and the delegate refused to grant the visa on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[4]
[2]Applicant’s original application was filed with the Department of Home Affairs on 26/07/2021.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a).
Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there was a real risk he would suffer significant harm, and therefore he was not a person in respect of whom Australia has protection obligations as defined in the Act.[5]
[5]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[6] Accompanying his application was a copy of the delegate’s decision. The review hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages[7] and the applicant personally appeared at the review hearing to give evidence and present arguments. He was represented with his representative who appeared by telephone.
[6]Filed on 02/12/2021.
[7]On 23/08/2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.
[8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]
[9]Migration Act1958 (Cth), s 36(2)(a).
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.[10] 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.[11]
[10]Migration Act1958 (Cth), s 5H(1)(a).
[11]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]
[12]Migration Act 1958 (Cth), s 5J(1).
[13]Migration Act 1958 (Cth), ss 5J(2)–(6) and ss 5K–LA.
If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]
[14]Migration Act 1958 (Cth), s 36(2)(a).
[15]Migration Act 1958 (Cth), s 36(2)(aa).
[16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17] Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]
[17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
[18]Migration Act 1958 (Cth), s 36(2B).
Country of reference and applicant’s identity
The applicant claims to be a citizen of Vietnam and he provided a copy of his passport issued [in] 2011 to authenticate this claim. The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[19]
[19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[20]
[20]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE
Applicant’s background
To support his application, the applicant provided a statutory declaration to the Tribunal where he outlined that he was from Vietnam. His parents and sister remain living in Vietnam. After graduating from high school in 2005, he enrolled in a Bachelor [Degree] at [University 1] in [City 1]. He completed that degree. After graduating from university in 2009, he travelled to Saigon where he found employment as an [Occupation 1] for a [company]. He remained with that employer until he departed for Australia in 2013.
Prior to departing for Australia, he consulted an agency in Saigon who helped him apply for a student visa and he was enrolled in an educational institution in Australia. Because that process required money and he was not personally able to finance his studies in Australia, he approached some of his friends to assist. His friends loaned him VND 200 million.[21] He claimed that to finance the remainder of the costs, he approached a loan shark and borrowed a further VND 500 million.[22] He used about VND 400 million to VND 500 million of the money to pay the agency for tuition fees, agency services fees and insurances. He took the remainder of the money with him when he travelled to Australia.
[21]This equates to approximately $12,000 to $15,000 in Australian currency.
[22]This is approximately $30,000 to $35,000 in Australian currency.
On 29 October 2013, the applicant arrived in Australia on a student visa which was valid until 31 August 2017. He started studying an English course at the [Private College 1] in Sydney, and he finished that course in December 2014. He then moved to Melbourne where he enrolled in a [Bachelor degree of a particular discipline] at the Melbourne campus of [University 2].[23] Not knowing much about [the discipline], he was unable to follow the content of the subjects and his results were unsatisfactory. He dropped out of the [particular] degree in late 2015.
[23]Now known as [University 2A].
In mid-2016, the applicant enrolled in a Diploma [in another field] at the [Private College 2] in Melbourne but ran into financial problems and he was forced to abandon that diploma at the end of his first semester. Because he was no longer enrolled in a registered educational course, the department cancelled his student visa.
He subsequently applied to the Tribunal for a review of that decision, with the Tribunal undertaking a review hearing at the end of 2018. The Tribunal affirmed the department’s decision to cancel his student visa.[24]
[24]Although the applicant deposed in his statutory declaration that the Tribunal affirmed the department’s decision on 29/10/2018, this was when the review hearing took place. It was on 21/01/2019 that the Tribunal affirmed the department’s decision.
At the review hearing for the present proceedings, the applicant told the Tribunal that for the intervening period between when the Tribunal affirmed the department’s decision to cancel his student visa to when he made an application for a protection visa, he remained illegally in Australia.
Applicant’s claims
Loan sharks
The applicant claimed he remained unlawfully in Australia because of the debt he had incurred in Vietnam prior to when he travelled to Australia in 2013. As outlined earlier in these reasons, the applicant claimed that when he applied for a student visa to study in Australia, he did not have sufficient funds to pay for the services, application fee and tuition fees in advance. He claimed that to meet those expenses, he borrowed VND 200 million from three of his friends and a further VND 500 million from a loan shark. He claimed he promised the loan shark that he would repay the debt in two years but was not able to carry out his promise because he could not find a job in Australia. He went on to claim that over the past eight years, the loan shark has applied a very high interest rate which has increased the debt to more than three times its original amount. The debt is now approximately VND 1.5 billion, or approximately AUD $60,000.
The applicant claimed that the loan shark has hired criminal gangs, and those gangs have visited his family to find him. He also claimed these gangs have demanded the repayment of the debt and threatened to harm him if the debt was not paid.
At the review hearing, the applicant told the Tribunal that within the first year of his arrival in Australia, he personally made several payments and paid back a third of the debt, although confusingly he suggested he repaid VND 50 million which is a great deal less than one third.
The Tribunal noted the applicant’s evidence that he could not secure employment during his time in Australia, and also noted the applicant later changed his evidence to suggest that it was actually his family who had made those payments to the loan shark, and not him personally. This variance in his testimony places doubt on the veracity of his evidence about this claim.
It is the applicant’s claim that he has a well-founded fear of returning to Vietnam because he believes the criminal gangs will carry out their threats. He claims to know that nowadays in Vietnam, the popular way for loan sharks to recover debts is for them to hire criminal gangs who will do anything to collect the debt, including cutting debtors' ears and fingers. The Tribunal notes that no actual direct threats have been specifically made to the applicant or to his family members in the terms he expressed, and nor did his testimony at the review hearing reveal that any such direct or implied threat had been made to any member of his family when the criminal gangs spoke to them.
The Tribunal identified to the applicant at the review hearing that notwithstanding his claim that he spoke to his parents in Vietnam each week, and he claimed the criminal gangs had frequently visited his family,[25] he had provided no supporting evidence to validate this claim. Fairness was afforded to the applicant and he was given the opportunity to provide evidence in the form of a statement, affidavit or a statutory declaration from his parents, or other member of his family in Vietnam to validate his claim that he owed a debt to the loan shark, and the criminal gangs visited his family. Subsequent to the review hearing, the applicant provided a letter purportedly from his father.[26]
[25]Applicant’s statutory declaration dated 26/07/2021 at paragraph VI.
[26]Dated 24/08/2022.
The contents of the letter matched the applicant’s claims so far as him lacking the financial resources to fund his overseas studies, and the applicant borrowing money from what was described as a ‘usury institution’, and because he could not keep up the payments, the debt and the interest have been accumulating and he now owes approximately VND 1.5 billion.
The Tribunal notes that although the letter refers to the applicant incurring a debt, no indication, acknowledgement or explanation was provided that the author was aware of the pertinent fact of the applicant claiming to have more than one debt and there were two creditors, being the loan shark and the applicant’s friends.
The letter goes on to say that over the past several years, some people have frequently come to the family home to ask for the payment and threaten the applicant’s safety, and as a consequence, the lives of his family have been turned upside down. He and the family have been told that if the applicant does not pay the money back, every possible means will be used to find him and cause him physical harm.
The letter also claims that the most recent visit took place “three weeks ago” when the family was visited by more aggressive and threatening people who asked for the applicant to “pay his debt as soon as possible if he does not want anything bad to happen to him”. Although no specific date was mentioned, the Tribunal notes the letter was dated 24 August 2022, therefore the timeframe indicated in the letter would be in early August 2022, or possibly very late July 2022.
In respect to the claim in the letter about the most recent visit to the family home, the Tribunal observes that if that visit did indeed occur as the letter alleged, and the applicant spoke to his parents each week as he claimed, then conceivably the applicant would have known about this. The Tribunal particularly notes that the applicant’s evidence, and his oral testimony was silent about this most recent alleged visit by the criminal gang to his parent’s house. Every opportunity has been afforded to the applicant for him to present evidence to support his claims. When the Tribunal listed his application for hearing, written advice was provided to him that he should provide to the Tribunal by 16 August 2022 a written submission setting out all of his claims made and maintained. The incident referred to in the letter occurred prior to the Tribunal giving him that advice, and as already indicated, no disclosure was made by applicant about the event which allegedly took place about three weeks prior to the hearing. The Tribunal has carefully considered the information raised in the letter and for the reasons just discussed, gives no weight to it so far as the determination of this application.
A further feature missing from the letter which casts doubt as to the veracity of the information provided relates to the applicant’s evidence that his parents paid back a third of the debt from their own savings. Discussed earlier in these reasons was the applicant’s conflicting evidence with respect to what he said was the repayment of a third of the debt. At first, he said that he made a series of payments, then he changed that version to claim that because he could not secure employment in Australia, his family made the payment from their own savings. If the applicant’s father did indeed repay a third of the debt, then this is an important feature which the Tribunal considers his father would have known about, yet when his father is discussing the debt in his letter, the applicant’s father makes no mention of this. This also casts doubt on the veracity of the claims made in the letter.
When assessing the letter, the Tribunal is not convinced of the veracity of its contents. In the Tribunal’s view, it is an afterthought, and its contents are designed to fill the gaps in the applicant’s evidence and to mirror the evidence already given whilst simultaneously lacking in specificity and detail regarding the important facts of the applicant’s case. The Tribunal places no weight on the contents of the letter and the claims made therein are rejected.
The applicant claims that he has a well-founded fear of persecution should he return to Vietnam because he borrowed money from a loan shark and he fears that if he were to return to Vietnam he will be threatened, tortured, or otherwise harmed by the loan shark. The applicant also claims that he cannot obtain protection from the Vietnamese authorities from the loan shark.

When assessing this claim, the Tribunal acknowledges that the charging of illegal rates of interest by loan sharks throughout Vietnam is prevalent.The Tribunal also acknowledges the country information contained within a report compiled by the DFAT (DFAT report) which provides that illegal moneylending is widespread in Vietnam, is not necessarily hidden, and may be facilitated by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets.[27] In 2018, authorities detected nearly four thousand business establishments operating in ‘black credit’ (the authorities’ term for illegal moneylending), while in 2020 investigators reported around 210 loan shark rings operating across the country.[28]
[27]DFAT Country Information Report for Vietnam dated 11/01/2022 at page 25, paragraph 3.102.
[28]Report of a United Kingdom (UK) Home Office fact finding mission to Vietnam conducted between 23/02/2019 and 01/03/2019, UK Home Office report dated 09/09/2019 at page 24.
The Vietnamese authorities have used law enforcement to break up the activities of criminal gangs involved in loan sharking. According to local media reporting within Vietnam, for the period between April 2019 to April 2020, police discovered 1,152 cases and 2,423 subjects related to black credit. Arising from this were the prosecution of approximately 1,400 defendants in 600 cases, and the fining of a further 900 people in 382 cases.[29] Authorities have also targeted loan shark gangs, leading to the arrests of thousands of gang members since 2016.[30] The Ministry of Public Security investigated 210 loan shark rings in 2019 alone, believed to have been operated by more than 2,000 people.[31] In February 2020, the Thanh Hoa Province Court sentenced 21 members of a loan shark gang to a total of 99 years imprisonment on charges of illegally detaining people and deliberately causing injury.[32]
[29]Black credit leading people to dead end, with no escape from debt, VietnamNet Bridge, dated 12/11/2020.
[30]Specialist police unit set up to target loan sharks in Binh Thuan, VietnamNet Bridge, dated 08/08/2018; 99 years in prison granted to black credit gang, Viet Nam News dated 19/02/2020.
[31]Vietnam lenders adopt loan shark tactics, Southeast Asia Globe, dated 18/11/2021.
[32]99 years in prison granted to black credit gang, Viet Nam News, dated 19/02/2020.
The Tribunal has carefully considered the country information from the DFAT report along with the other external information sources referenced above as it applies to the applicant’s claims, and when that information is assessed against the applicant’s claim that he cannot be protected by the Vietnamese authorities, it is apparent that the information clearly provides that there is no basis for the applicant to have a well-founded fear of persecution should he return to Vietnam. His claim is rejected.
When assessing the applicant’s claims, careful consideration was given to his evidence. Already identified in these reasons was his evidence about the alleged repayment of money back to the loan shark. At first he said he personally made several payments to the loan shark and paid back a third of the amount he borrowed, but the amount he said he repaid equated to an amount far less than a third of the amount he allegedly borrowed. Then his evidence changed from him personally repaying the money to it being his family who had paid the money to the loan shark. The evidence of the applicant’s father makes no reference to the applicant’s father being aware of what amount the applicant allegedly borrowed from the loan shark; or the applicant borrowing money from his friends; and nor does it validate the applicant’s claim that his family paid money to the loan shark. The accumulative effect of those features just identified casts serious doubt on the veracity of the applicant’s claims about the alleged debt, along with his claim that there is a well-founded fear of a real chance that he will suffer serious harm if he returns to Vietnam. The applicant’s claims are rejected.
Relocation
The applicant claims that if he returned to Vietnam, he would not be able to relocate because the gangs will find him easily. It was his understanding that the Vietnamese authorities will not protect him from serious harm until such time as the harm has occurred. The Tribunal does not accept this a valid claim and it is rejected.
The Act provides that there is not a real risk that an applicant will suffer significant harm in Vietnam if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of Vietnam where there would not be a real risk of him suffering significant harm.[33] To assist in the assessment of this claim, guidance is provided to the Tribunal by the High Court in the judgments of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 (SZFDV). In those cases, the High Court determined that whether relocation is reasonable, in the sense of ‘practicable’, will depend upon the particular circumstances of the applicant and the impact upon him if he were to relocate within Vietnam.
[33]Migration Act 1958 (Cth), s 36(2B)(a).
The Tribunal notes that the applicant is an educated man, and after graduating from the [City 1] University in 2009 with a degree in [Subject 1], he moved to Saigon which is a distance of approximately 1,000 kilometres. Although he failed his education in Australia, in Vietnam he would still be considered a well-educated person because he had a university degree and could find employment anywhere in Vietnam.
The applicant proposes that the criminal gang network employed by the loan sharks are quite powerful and are well connected and even if he did relocate, one way or another these gangs would be able to find him because when he got the loan from the loan shark, a copy was taken of his identification card which showed his home address in [City 1], along with his date of birth etc.
In respect to being protected by making a complaint to the police, the applicant does not accept any assessment that police are cracking down on loan sharks and their associated criminal gangs. He claimed that the police cannot help him because in reality, it is not like it is recorded within the country information in the DFAT report. When asked by the Tribunal to explain how he knew this, he claimed that he read all about it on the internet and in social media, which the Tribunal notes he did not produce any such supporting material for the Tribunal’s consideration. Notwithstanding that, the Tribunal prefers the evidence contained within the DFAT report over and above the applicant’s unsubstantiated claims and notes the steps the Vietnamese authorities have taken and continue to take against loan sharks and the associated criminal gangs. Discussed earlier in these reasons are the steps the Tribunal is referring to.
The Tribunal rejects the applicant’s claim that he will not be protected within Vietnam from the criminal gangs employed by the loan sharks when they seek to locate him because of the debt he claims he owes the loan shark. The applicant has not provided any explanation why he could not legitimately relocate from his home location of [City 1] to another part of Vietnam. As already pointed out, he has previously undertaken a relocation within Vietnam.
The DFAT report provides that internal relocation within Vietnam is common. Although police keep a close watch over relocation and citizens staying even one night away from their homes must register with local police. In practice, the police do not strictly enforce laws regarding residence to the extent that it would prevent internal relocation, particularly from rural to urban areas as part of Vietnam’s recent rapid urbanisation. Although the household registration book is utilised in Vietnam, it appears that this more so applies to political dissidents, criminals, and persons of interest to the Vietnamese authorities such as those on blacklists.[34]
[34]DFAT Country Information Report for Vietnam dated 11/01/2022 at pages 31 – 32, paragraphs 5.18 – 5.24.
The UK Home Office country policy and information report provides that victims of illegal moneylenders will, in general, be able to internally relocate to escape a localised threat from moneylenders but this will depend on the person’s circumstances and the nature of the threat.[35] When considering that information, along with the High Court’s principle in SZATV and SZFDV, the Tribunal considers that the applicant’s particular circumstances do not impact upon him to such a degree that he could not relocate within Vietnam.
[35]UK Home Office report, Country Policy and Information Note Vietnam: Fear of illegal moneylenders, Version 1.0, December 2018 at page 7, paragraph 2.6.2.
The Tribunal notes that the applicant is an educated man, he holds a university degree and has previously been employed in a responsible and reputable position with a Vietnamese [company]. The Tribunal is of the view that he would have no difficulty in finding meaningful employment anywhere within Vietnam upon his return to that country and there is no basis for the applicant to have a well-founded fear of persecution because he could not relocate within Vietnam.
In conclusion, careful consideration has been applied to the assessment of the information just discussed. The Tribunal accepts the country information provided in the DFAT report with respect to the significant capabilities demonstrated by the Vietnamese authorities over a number of recent years in regard to protecting usury institution debtors such as the applicant. The Tribunal is satisfied that the Vietnamese authorities have sufficient and effective protective measures in place to protect the applicant from the loan shark, and the Tribunal finds that the applicant does not have a well-founded fear as defined in the Act should he return to Vietnam. The Tribunal rejects this claim.
Sexual orientation
It is the applicant’s responsibility to specify all particulars of a claim in respect to be a person of whom Australia has protection obligations, and the applicant is to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.[36]
[36]Migration Act 1958 (Cth), s 5AAA.
Notwithstanding that, the Tribunal notes that within the applicant’s application, he nominated that he is in a same sex relationship and he married his spouse on 11 July 2021, which is about two weeks before he made his application for a protection visa. Although the applicant does not suggest or propose within his application, claims or supporting statutory declaration that he fears, or possesses a well-founded fear of persecution should he return to Vietnam because of his sexual orientation, the Tribunal observed that during the review hearing, he raised the issue of his marriage to his same sex spouse. The Tribunal also observed that he raised no issues of concern that his sexual orientation causes him to have a well-founded fear of persecution should he return to Vietnam.
Notwithstanding those features just identified, the Tribunal nevertheless considered the applicant raising his sexual orientation in his testimony at the review hearing. In conjunction with those features discussed above, the Tribunal has considered the country information provided by the DFAT report in respect to a citizen’s sexual orientation within Vietnam. The DFAT report outlined that sex between adults of the same sex is legal within Vietnam and LGBTI civil society organisations (CSOs) are relatively free in their operation. Despite relative freedom from official interference, social stigma, and discrimination against LGBTI individuals is common, the situation is better in large cities where LGBTI friendly spaces such as cafes, shops and galleries exist, and many LGBTI people use smart phone applications and directories to engage in physical and online communities.[37] It is noted within the DFAT report that Vietnam has a large CSO landscape that is constitutionally protected by the Vietnamese Constitution. While those involved in sensitive topics like human rights are carefully monitored, other active and vocal CSOs involved in less sensitive subjects such as women’s and LGBTI groups are relatively free to operate,[38] and LGBTI issues are not seen as a particularly sensitive topic by the Vietnamese government.[39] Within Vietnam, LGBTI people face a low risk of official discrimination, but may face a moderate risk of societal discrimination, particularly within their families.[40]
[37]DFAT Country Information Report for Vietnam dated 11/01/2022 at page 24, paragraph 3.94.
[38]DFAT Country Information Report for Vietnam dated 11/01/2022 at page 20, paragraph 3.68.
[39]DFAT Country Information Report for Vietnam dated 11/01/2022 at page 24, paragraph 3.95.
[40]DFAT Country Information Report for Vietnam dated 11/01/2022 at page 25, paragraph 3.101.
Although the applicant did not specifically raise the claim in respect to his sexual orientation within his application or his supporting statutory declaration, the Tribunal has nevertheless carefully considered all of the features of his oral testimony in respect to this issue. In conjunction with that evidence and applying the country information contained within the DFAT report relating to how LGBTI people are received or treated in Vietnam, the Tribunal finds that there is not a real chance of him suffering serious harm because of his sexual orientation upon his return to Vietnam. The Tribunal also finds that the applicant does not have a well-founded fear of persecution in Vietnam because of his sexual orientation as defined in the Act.[41]
Delay in lodging an application for protection
[41]Migration Act 1958 (Cth), s 5J(3)(c)(vi).
On the applicant’s his own evidence, he said that he arrived in Australia on a student visa on 29 October 2013, almost eight years prior to his application for a protection visa. When assessing his claim that he has a well-founded fear of persecution if he returned to Vietnam because he owed money to a loan shark, the Tribunal makes the observation of the applicant’s significant delay in making his application for a protection visa.
In his oral testimony to the Tribunal, the applicant said it was after he dropped out of the diploma of business at the [Private College 2] in late 2016 that he got into financial difficulty and he realised he was not able to repay the loan to the loan shark. On that basis, despite it being almost eight years since his arrival in Australia, there clearly was a period of well over four and a half years from latter event in 2016 to when he filed his application for a protection visa.
As explained earlier in these reasons, the Tribunal notes that within that intervening period, the department cancelled the applicant’s student visa which ultimately led him to lodging an application with the Tribunal to review that decision. His testimony at the review hearing for his protection visa application was that when he initiated the review of the department’s decision relating to his student visa, he went to an organisation for assistance in making his application. Although unable to articulate what that agency was or what their area of expertise was, he implied that he was helped with his application relating to the student visa, although he was never advised about anything relating to a protection visa.
The Tribunal notes that there is a period of approximately two and a half years between when the Tribunal affirmed the cancellation of the applicant’s student visa to when the applicant made his application for a protection visa. When queried about that time lapse, the applicant said he had been unlawfully in Australia during that time. When asked why it took him so long to make his protection visa application, he said that the reasons he overstayed in Australia for so long was because he was unaware that he could apply for a protection visa, that is, he had never heard of a protection visa, although he had heard about a refugee visa but thought this applied to people who had escaped wars etc. He only became aware of what a protection visa was by reading about that type of visa on the internet and what others had posted on social media.
In respect to any consideration about the delay on the applicant’s behalf to make his application, the Tribunal is guided by the principle that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.[42] Therefore, 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.
[42]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997.
Already outlined in these reasons is the timeline from when the applicant arrived in Australia to when he ceased his studies because of the financial difficulties he experienced. This ultimately led to his student visa being cancelled in 2016. He then unsuccessfully reviewed that decision and remained unlawfully in Australia until being granted a bridging visa when he made his application for a protection visa.
The Tribunal is guided by the principle that the existence of a significant delay is not behaviour indicative of someone who fears for their physical safety,[43] and in regard to the applicant, the Tribunal considers that his excuses for the delay in making his application are not plausible and nor are they convincing.
[43] Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423; Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370, [22].
Having considered the facts and circumstances relating to the delay, along with the evidence offered by the applicant, the Tribunal’s finds that the considerable delay casts significant doubt on the genuineness of his claims that there was a real chance he would suffer serious harm if he returned to Vietnam. The Tribunal also finds that the considerable delay also casts doubt on the veracity of his claims that he has a well-founded fear of persecution as defined in the Act if he returned to Vietnam.
Refugee findings
The applicant claims that because he borrowed money from a loan shark in Vietnam, he fears that if he were to return to Vietnam he will be threatened, tortured, or otherwise harmed by the loan shark. The applicant also claims that he cannot obtain protection from the Vietnamese authorities from the loan shark.
When assessing the applicant’s claims, the Tribunal acknowledges that the charging of illegal rates of interest by loan sharks throughout Vietnam is prevalent and illegal moneylending is widespread within Vietnam and that the Vietnamese authorities have recognised the seriousness of the practice and taken significant measures to identify those involved with law enforcement utilised to break up the activities of criminal gangs involved in loan sharking. There have been a substantial number of successful prosecutions for loan sharking with significant prison terms handed down by the Vietnamese courts.
The above country information derived from the DFAT report and other contributing sources demonstrates that although the Vietnamese government appears to be unable to prevent debts being incurred or protect borrowers from illegally high interest repayments, the authorities are making inroads in prosecuting loan sharks when they attempt to enforce the payments of debts through the use of violence. Therefore, none of the information available to the Tribunal leads to any conclusion that the applicant will face a real chance of serious harm for any reason upon his return to Vietnam.

The Tribunal notes that the applicant is an educated man, he holds a university degree and has previously been employed in a responsible and reputable position with a [company in Vietnam]. The Tribunal is of the view that he would have no difficulty in finding meaningful employment anywhere within Vietnam upon his return to that country and there is no basis for the applicant to have a well-founded fear of persecution because he could not relocate within Vietnam.
In regard to whether the applicant is able to relocate within Vietnam, the country information within the DFAT report provides that the Vietnamese authorities have significant capabilities to protect the applicant from the loan shark and the authorities have demonstrated that ability over a long period of time. The applicant is an educated man who holds a university degree and has previously relocated a significant distance away from his family home. There is no basis for the applicant to have a well-founded fear that he could not relocate to be protected.
In respect to the applicant’s sexual orientation and whether this leads to a conclusion that he would have a well-founded fear of persecution should he return to Vietnam, it is the Tribunal’s view that having regard to the country information contained within the DFAT report that sex between adults of the same sex is legal within Vietnam and the LGBTI CSOs are relatively free in their operation, the Tribunal finds that the applicant will not face a real chance of serious harm because of his sexual orientation.
The Tribunal also considered the applicant’s delay in filing his application for a protection visa. As already outlined in these reasons, the Tribunal finds the considerable delay casts significant doubt on the genuineness of his claims; and the Tribunal acknowledges that although it was some time after he arrived in Australia that he became aware that he could not repay the debt, this too was a passage of a significant amount of time until he filed his application.
Having considered all the circumstances as they apply individually and cumulatively to the applicant, along with the country information provided in the DFAT report, the Tribunal finds there is not a real chance for any reason in the reasonably foreseeable future that the applicant will be persecuted for the reasons which he claimed. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and therefore, he is not a refugee within the meaning of section 5H of the Act.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and regard was given to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm.
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[44] the Tribunal has considered the alternative complementary protection criterion.[45] In considering this alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as it is defined in the Act.[46]
[44]Migration Act 1958 (Cth), s 36(2)(a).
[45]Migration Act 1958 (Cth), s 36(2)(aa).
[46]Migration Act 1958 (Cth), s 36(2A).
Because of the above findings, the Tribunal is not satisfied that in the reasonably foreseeable future, there is a real risk that the applicant will suffer significant harm for any of the reasons he claimed if he returns to Vietnam. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[47]
[47]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Already identified above, upon his return to Vietnam, the Vietnamese authorities have significant and capable measures in place to protect the applicant from him suffering experiencing significant harm at the hands of the loan shark who lent him money.
Having considered all his claims, individually and cumulatively, along with the evidence and submissions and the country information within the DFAT report, the Tribunal does not accept that if the applicant returns to Vietnam now or in the reasonably foreseeable future: he will be arbitrarily deprived of life; the death penalty will be carried out on him; or he will be subjected to torture or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk that he will suffer significant harm as defined in section 36(2A) of the Act. Thus, the Tribunal finds the applicant does not satisfy the criterion as provided in section 36(2)(aa) of the Act.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) of the Act or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in section 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
Attachment - Extract from Migration Act 1958 (Cth)
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.
…

[2022] AATA 4430

5 September 2022

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