2307454 (Refugee)

[2024] AATA 3461

2307454 (Refugee) [2024] AATA 3461 (20 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kate Hoang

CASE NUMBER:  2307454

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Wayne Pennell

DATE:20 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 20 May 2024 at 12:38pm

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – feared harm from a distant relative – loan – a new claim –political opinion – association with the Viet Tan organisation – a particular social group – a failed asylum seeker – not satisfied that there is any credibility attached to the applicant’s claim – applicant had provided conflicting, inconsistent and contradictory information over time  – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 424, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 29 March 2018.

2. The applicant, who is a citizen of Vietnam, was granted a Tourist visa on 20 June 2017. That visa was due to expire on 10 January 2018. Her arrival in Australia subject to the conditions of that visa did not take place until [October] 2017, which was approximately four months after she was granted the visa. She remained in Australia for almost three months, and five days prior to the expiry of the Tourist visa, she lodged her application with the Department for a Protection visa on 5 January 2018.

3. The applicant did not fill the application out herself, instead she gave information to someone else who filled it out for her. That application is discussed in greater detail later in these Reasons. Her initial claims for protection are described in Part C of that application are:

89

Why did you leave that country(s)?

I LEFT MY OWN COUNTRY BECAUSE DISTRUST OF THE JUDICIARY AND LOW ENFORCEMENT. POOR SYSTEM OF GOVERNMENT, BURREACRACY STARTING FROM THE LOWEST LEVER UP TO THE TOP. THE DISTRUCTION OF THE GLOBAL ECONOMY IMPACT ON THE NATIONS ECONOMY. POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, I HAS BEEN LIVING IN A HARSH CONDITION SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED.

SO IM CHOOSE AUSTRALIA TO BEING LIVE MORE BETTER FROM MY COUNTRY.    HOPE THE GOVERNMENT OF AUSTRALIA CAN GIVE ME HOPE TO GET AND MAKE CONCIDERATION TO APPROVE MY APPLICATION FOR PROTECTION.

THE ALL COOPERATION FROM GOVERNMENT AND THE MENISTER OF IMMIGRATION I WOULD LIKE TO SAY THANK YOU VERY MUCH.

90

What do you think will happen to you if you return to the country(s)?

IF I RETURN TO MY COUNTRY, I WILL GET CAUGHTBY CREDITOR AND COULD BE BEATEN, INJURED OR KILLED. THEY WILL SEARCHING ME.

91

Did you experience harm in that country(s)? [ticked yes]

YES I ALREADY EXPERIENCE HARM IN THAT COUNTRY BECAUSE I ALREADY RECEIVED VERBAL THREATENED FROM THEM TO HURTING ME. BESIDES THAT, I LIVE IN HARDSHIP (BECAUSE THE BAD ECONOMY).

92

Did you seek help within the country(s)? [ticked Yes]

YES BUT NOTHING HAPPENED BECAUSE THIS IS A MATTER OF ECONOMY OF THE COUNTRY (THEY CONSIDER AS A PERSONAL PROBLEM)

93

Did you move, or try to move, to another part of the country(s) to seek safety? [ticked No]

I DID NOT TRY TO MOVE TO ANOTHER PART OF THE COUNTRY BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM EVEN MORE TO ANOTHER PLACES (INSIDE THE COUNTRY)

94

Do you think you will be harmed or mistreated if you return to that country(s)?

YES I WILL LIVE IN HARSH CONDITIONS, SUFFERED DISCRIMINATION FOR [SPECIFIED] WOMEN

95

Do you think the authorities of that country(s) can and will protect you if you go back?

NO BECAUSE THE AUTHORITIES COULD NOT PROTECT ME BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM.

96

Do you think you would be able to relocate within that country(s)?

NO, UNABLE TO LOCATE BECAUSE THIS IS A MATTER OF SOCIO-ECONOMIC. I WILL EXPERIENCE THE SAME PROBLEM.

1. After receiving the applicant’s application, the Department wrote to her on 19 January 2018 and acknowledged receiving the application. In doing that, the Department invited her to provide additional information in relation to her claims. She did not take advantage of that opportunity and has provided no additional information, material or evidence to the Department.

2. She was not invited for an interview with the Department in regard to her application or the claims she made.

3. A delegate of the Department undertook an assessment of the applicant’s application. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vietnam, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[2] and therefore she was not a person in respect of whom Australia has protection obligations.[3]

   [2]Migration Act 1958 (Cth), s 5H.

   [3]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

4. On 29 March 2018, the Department advised the applicant of the decision to refuse her application for a Protection visa and she was provided with a copy of the delegate’s decision record. Subsequently, on 10 April 2018 she lodged an application with the Tribunal to review the delegate’s decision (‘review application’). In making that review application, she provided to copy of the delegate’s decision record to the Tribunal along with a copy of the Department’s letter notifying her of the refusal of your application.

5. At a much later time, on 11 January 2022 the applicant was invited by the Tribunal (differently constituted) to attend the hearing of her application. That hearing was scheduled for 28 January 2022. At that time of the proceedings, the applicant was represented and she was assisted throughout the hearing process by an interpreter in both the English and Vietnamese languages. The basis relied upon by the applicant during that hearing as to why she could not return to Vietnam was because she feared harm from a distant relative, being her grandfather’s nephew. She said that she had earlier borrowed VND 2,000,000,000 from him, which was later scammed from her and she had not paid back the money.

6. Shortly after the hearing took place, on 1 February 2022 the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a Protection visa. On 8 March 2022, the applicant lodged an application in the Federal Circuit and Family Court of Australia (Division 2) (‘the Court’) for a judicial review of the Tribunal’s decision.

7. On 27 April 2023, the Court made a decision in favour of the applicant and quashed the Tribunal’s decision and directed the Tribunal to reconsider and determine the applicant’s application for review according to law.

8. On 29 May 2023, the Tribunal dispatched to the applicant an email advising her that unless otherwise advised, all future correspondence would be sent to what is now known to be as her former representative. Shortly thereafter, on 31 May 2023, the applicant’s current representative sent an email to the Tribunal along with the appropriate Form MR5 advising of a change to the representative for the applicant.

9. There was no other correspondence between the applicant’s representative in the Tribunal until 14 November 2023 when the Tribunal sent an email to the applicant and her representative advising that the applicant’s file had been allocated to a member of the Tribunal. Accompanying that email was a pre-hearing information form and the applicant was asked to complete that form and return it to the Tribunal. That form was signed on 16 November 2023 by the applicant and return to the Tribunal by her representative on 20 November 2023.

10. On 3 January 2024, the Tribunal wrote to the applicant and invited her to attend hearing scheduled for 30 January 2024 (‘remittal hearing’). Enclosed with that invitation was a ‘Response to hearing invitation’ template, which was later appropriately filled out and returned to the Tribunal by the applicant’s representative on 8 January 2024. Within that template it was indicated that the applicant would appear in person at the hearing, and there were no witnesses (apart from the applicant). Because the representative was located interstate, a request was made for the representative to appear at the hearing by video link. It was also indicated that the documents to be relied upon at the hearing were a photo evidence booklet, statement and submissions. The Tribunal subsequently gave approval for the applicant’s representative appearance at the review hearing to be undertaken by way of a video link.

11. On 25 January 2024, the Tribunal was provided with an email from the applicant’s representative which enclosed two PDF documents. They were:

    (a)A document titled photo evidence booklet consisting of five pages and seven photographs which is relevant to the applicant’s new claims that she has a political opinion and is connected to the association known as Viet Tan.

    (b)The applicant’s statutory declaration (three pages) provided to the Tribunal on 25 January 2024.

12. The remittal hearing was undertaken in two parts, on 30 January 2024 and 16 February 2024. On both occasions the applicant was represented and although she was assisted by a suitably qualified and accredited interpreter in both the English and Vietnamese languages, there were different interpreters used during both hearings. It was clarified with the applicant that she was able to understand the interpreters, as well as communicate with them.

13. Notwithstanding that she was assisted by the interpreters with regard to communicating with the Tribunal, the Tribunal did note that from time to time throughout the hearing there were examples when the Tribunal asked her a question and she did not wait for that to be interpreted, instead she took the opportunity to respond in English very briefly, or immediately give her answer in Vietnamese. Apart from that, the hearings were undertaken by way of full interpretation.

14. When the hearing commenced, it was identified to the applicant’s representative that although the Tribunal was in possession of Part B and Part C of the applicant’s Protection visa application, after undertaking a thorough search of the material available to the Tribunal could not locate any statutory declaration or statement made by her which related to the claims expressed in that application. Nor was there any statutory declaration or statement within the that related to her current claims in respect to borrowing a large amount of money from here uncle.

15. The applicant has never at any time provided the Department or the Tribunal with a statutory declaration or statement outlining any particulars or evidence in respect to her claim that she had a well-founded fear of being harmed by her uncle is she returned to Vietnam because she borrowed a large sum of money from him.

16. This was confirmed with her legal representative during the remittal hearing that up until the provision of a statutory declaration to the Tribunal on 25 January 2024, the only claims relied upon by the applicant with those which were outlined within her initial application for a Protection visa, and she had never provided a statement or statutory declaration to the Department or the Tribunal. When looking at her statutory declaration, all that she said was:

    I retain my previous claims in regard to fear of facing harms from debt creditors in Vietnam.

    CRITERIA FOR A PROTECTION VISA

17. The measures for a Protection visa are set out in the Act[4] and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[5] 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.

    [4]Migration Act 1958 (Cth), s 36.

    [5]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

18. 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.[6]

    [6]Migration Act1958 (Cth), s 36(2)(a).

19. 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.[7] 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.[8]

    [7]Migration Act1958 (Cth), s 5H(1)(a).

    [8]Migration Act1958 (Cth), s 5H(1)(b).

20. 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.[9] 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.[10]

    [9]Migration Act 1958 (Cth), s 5J(1).

    [10]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

21. If a person is found not to meet the refugee criterion in the Act,[11] 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’).[12] 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.[13]

    [11]Migration Act 1958 (Cth), s 36(2)(a).

    [12]Migration Act 1958 (Cth), s 36(2)(aa).

    [13]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

22. 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.[14]

    [14]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).

23. 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.[15]

    [15]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

24. The applicant claims to be a citizen of Vietnam and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence she 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.[16]

    [16]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

25. 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 she is not excluded from Australia’s protection obligations.[17]

    [17]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

26. In accordance with Ministerial Direction No. 84 made under the Act,[18] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT report’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [18]Migration Act 1958 (Cth), s 499.

    CLAIMS AND EVIDENCE

27. In regard to her background, the applicant was born in Vietnam and is a Vietnamese citizen. Her parents still live in Vietnam, as [do her siblings]. When asked whether any member of her family had been to Australia to visit her, she said that an older sister had been to Australia before the applicant came here. Her sister came as a tourist and has already returned to Vietnam.

28. When discussing her family constitution, she said that she grew up in a small rural village. Both of her parents still live in that village. Her father is a fisherman, and her mother is a housewife. Initially she had [number other siblings]. Unfortunately one of her older brothers has passed away.

29. In regard to her education, she graduated from high school when she was aged [age]. She then moved from her rural village to the city of Hue where she studied to become a [Occupation 1]. Sometime in 2014 or in early 2015 she finished those studies and attained a [qualification]. The Tribunal notes throughout the passing of over six years since she lodged her application for a Protection visa and made her claims, her application has progressed through the Tribunal’s process, as well as an appeal to the Court where it was remitted back to the Tribunal. In all of that time, she has never provided any evidence in the form of a statement of statutory declaration from any member of her family, and nor has she provided a copy of her diploma to corroborate, support  or validate her protection claims, or that she had attended a college and studied and completed a [qualification].

30. In regard to paying any costs associated with her college education, she said that her parents gave her some money to help pay for the costs, and she paid the remainder. The total costs of the diploma was about VND 10,000,000, of which she paid between VND 3,000,000 to VND 4,000,000 and her parents paid the rest.

1. She also disclosed during her evidence that she had to pay extra costs because she had also studying [another course]. Her [second] study costs were approximately between VND 7,000,000 and VND 8,000,000. Her parents paid about VND 3,000,000 to VND 4,000,000 of those costs, and she borrowed the remainder of the costs from her brother and her sister. She later confirmed that she has not paid any of the money back to any of her family members which was needed for her education.

2. When the Tribunal later clarified with her the amounts she borrowed, and from which particular family member she borrowed the money from, she was asked how much did she borrow from her brother. Her evidence then changed and she said that she did not borrow money from her brother. When challenged by the Tribunal that her earlier evidence was that she had borrowed some money from her brother, she then tried to explain it away from saying that she was speaking generally about borrowing from her siblings but more specifically from her second oldest sister. That inconsistency which has been identified, is in the Tribunal’s view, is just one of a number of inconsistencies which arose during her evidence.

3. When asked if she kept in touch with any members of her family, she said that she seldom did and the last spoke was when she spoke to her oldest sister on 1 January 2024. In the Tribunal’s view, the applicant’s version about which members of her family she borrowed money from changed between the first time she was asked to the later time of when those details were clarified with her. It was only when challenged about her inconsistencies that she claimed that she was generally speaking about members of her family.

4. The Tribunal found that her evidence about the amounts she borrowed from her parents and other members of her family was vague and full of uncertainties. Therefore, that evidence about her borrowing money from her family to pay for her education is not accepted. Despite the passing of a significant amount of time after she has arrived in Australia, and that her application has already decided by the Tribunal, then judicially reviewed by the Court and remitted back to the Tribunal, she has not provided either the Department of the Tribunal with any certificate, diploma or other document; or even a photograph of those documents showing that she had completed the [diplomas] as she has claimed. When that is weighed against the inconsistencies in her evidence at the hearing, the Tribunal does not accept that any credibility is attached to her claims that she studied for a [qualification] and had borrowed money from her parents, her brother and her sister to help pay for those educational costs.

5. When asked about whether she has been working in Australia, the applicant confirmed that for the past six years she worked in  [shops] in Brisbane, and is presently employed at a  [shop] in a shopping centre. During this time, she had been earning a wage and she worked initially worked about 15 hours a week, and now she works about 20 hours a week, although there was a period about six months prior to the hearing that when she worked as much as 35 hours a week.

   Loan of VND 2,000,000,000 from applicant’s uncle

6. The applicant explained her claim in respect to owing a large amount of money to a person who she later described as her father’s younger brother, and the Tribunal notes that from time to time in her evidence, she also referred to him as the ‘lender’. For the purposes of these Reasons, that person is sometimes referred to by the Tribunal as her uncle or the lender. She described the loan as VND 2,000,000,000 and said that this was the money that she borrowed so that she could get a job at a  [Occupation 1 workplace]. After finishing her studies to become a  [Occupation 1] and getting her diploma, she started looking for a job as a [Occupation 1]. She was interested in a particular [Occupation 1 employer, Workplace 1] and she knew that the [employer] had a vacancy. She asked somebody who “knew that [employer]”, and that person told her that to get that she needed to pay VND 2,000,000,000. On a current currency exchange rate, this amount is approximately AUD 118,000.

7. At this time, she was working in the hospitality industry working in a [Workplace 2] and she was earning between VND 500,000 to VND 700,000 each month. On a basic mathematical calculation, when multiplied by the number of months in a year, her yearly salary would have been approximately VND 6,000,000 to VND 7,200,000. Those amounts would of course change if she took holidays or she fell ill. Therefore, the amount of VND 2,000,000,000 she said that she needed to get the [position] fell somewhere between 2,857 to 4,000 times her monthly salary; or more precisely somewhere between 238 and 333 times her calculated annual salary in the hospitality industry at that time.

8. She went on to explain to the Tribunal that in 2015, being about three to four months after she graduated with her diploma, she was able to borrow VND 2,000,000,000 from somebody. She took the money and gave it to the other person. That person then ran away with the money. When she was asked to nominate when in 2015 she graduated, she said that she did not remember the date of her graduation. She was then asked to nominate which part of the year her graduation took place for example was it at the start of the year, the end of the year or the middle of the years. She then said that it was sometime between 2014 to 2015, probably at the beginning of the year. The Tribunal notes that her application for a Protection visa suggests that she attended the [College] between 2012 and 2015.[19]

   [19]Applicant’s application, Part C, page 18.

9. When asked who this person was who ran away with the VND 2,000,000,000, she could only say that she knew him as a ‘broker’. When asked for his name, she said that his name was [Mr A]. Knew nothing else about him except that she had heard people talking about him so she got his phone number and contacted him.

10. When asked why she contacted him, she said that in Vietnam if you want a job you have to pay money, and because she wanted to get a job at that [employer], she had heard that [Mr A] could assist her. When asked where she met [Mr A], she said that she met him at a coffee shop in front to the [employer] which had the vacancy for the job. She said that she twice met him face-to-face and she also spoke to him on the phone. She did not remember the number of times they spoke on the phone, but just remembered that it was a number of times. She confirmed that both of the times she personally met with him was at the coffee shop opposite the [employer].

11. When asked about whether the money she gave him was in paper currency, she confirmed that it was and that she took the money to the coffee shop in a bag. When asked how big the bag was, she then altered her evidence slightly to then say that the money was in two bags, each bag containing VND 1,000,000,000. She said that each bag was bigger than a ‘Woolies’ bag, and the Tribunal understand that she meant by the word ‘Woolies’ to mean Woolworths.

12. She said that she had already counted the money when she got the money from the lender. She did not count the money when she gave it to [Mr A], but he ([Mr A]) counted the money. When asked if he counted the money on a table in the coffee shop, she said that he took the money to his car and counted the money. He then came back to where she was. When asked how did she know that he counted the money, she said that she was not with him when he went to his car but he took the money to his car, he counted it and then came back to her and told her that the money was adequate and that he would talk to the [employer] and the [employer] would communicate with her.

13. When asked why she thought that it was going to cost her VND 2,000,000,000 to get a job at the [employer], she said that in Vietnam and she came from a rural area and finished her education and after she graduated she wanted to have a good and stable job. In order to get a job after graduation in Vietnam, a person has to ‘pay under the table’ which is what she described as ‘lubricating money’, as a kind of bribery to get that job.

14. At this stage of her evidence, she had still not nominated who the person was who loaned her the large sum of VND 2,000,000,000. When asked to identify who that person was, she said that this person was a ‘distant relative’. She was very nonspecific about this person’s identity, and the Tribunal told her  that a ‘distant relative’ could be anyone that is related to her. She was then asked to identify that person and tell the Tribunal how this person was related to her. She then named the person as [Mr B], and said that he is related to her because he is an uncle from her father’s side of the family. When asked to confirm whether he was her father’s brother, she confirmed that he was her father’s younger brother.

15. She was asked to clarify where her uncle lived, she explained that when he was younger he used to live in the same village as her father but he later migrated to somewhere near to the city of Hue. She was then specifically asked how old she was when her uncle left the village and moved to the city. At first she said that she did not know how old her uncle was when that happened. The Tribunal had to then twice particularised to her through the interpreter that the question being asked was “how old were you when your uncle left the village and migrated to the city?’. Her reply was that she did not know, but she heard some people say that he used to live in the home town but then he got to the city when he was older. She then said that she did not remember exactly how old she was at that time when he left the village, but she was able to confirm that she was in ‘senior high school’. When asked whether it was close to when she finished school, she said that she thought that it was close to the end of [a grade], and she clarified that she would have been about [age] or [age] years of age. She agreed that because she was born in [year], then her uncle’s move to the city would have been around 2007 to 2008. She then said that she was not sure what year he moved. She went on to say that her uncle was a [businessman]. Once he got richer he expanded his business and moved to the city. When asked whether she knew her uncle very well, she responded “no, not exactly”.

16. The Tribunal is satisfied that even though her uncle may have lived for some time in the same village as she did, and he was her father’s younger brother, she did not know him or know much about him other than he bought and sold [products] and moved to the city.

17. When carefully assessing that part of her evidence, from what she was telling the Tribunal, her uncle was a person that she did not really know, and had nothing to do with when they lived in the same village, yet inexplicably without any assets or ability to service or provide security for a loan, her uncle loaned her an unsecured amount of VND 2,000,000,000 so that she could ‘possibly’ get a [job].

18. She told the Tribunal that her father spoke to her uncle, and she told her uncle that once she got a job she would earn money and would pay him back.

19. Her evidence, at best, places an average annual salary for a [specified] worker in Vietnam at VND 134,400,400. The loan amount was almost 15 times greater than that amount. The Tribunal is of the view, and so finds, that it would be implausible for any money lender who was engaged in black credit in Vietnam would loan that vast about of money to a person such as the applicant, who was then going to speculate and pay someone else with the hope of securing a job.

20. The applicant was then asked by the Tribunal if she had signed any loan documents with her uncle. She said, “there were some paperwork on a piece of paper” and that her signature was on the document which said that the applicant had borrowed the money from her uncle. She claims that her uncle kept the document and did not give her a copy. The Tribunal particularly notes that at no time did she reference during her evidence anything remotely relating to any interest rate or amount that was attached or connected with her borrowing that amount of money. Again, the Tribunal finds that it is implausible that anyone engaged in black credit in Vietnam would lend any amount, let alone a large amount such as VND 2,000,000,000 without there being any interest on that loan.

21. When discussing with her how she planned to repay the money to her uncle, she said that she was working part time shifts in the hospitality industry [at] that time, and her average monthly salary was between VND 500,000 to VND 700,000 each month. When that is calculated on an annual basis, that is approximately VND 6,000,000 to VND 7,200,000. As it has already been identified in these Reasons, the amount she claimed she borrowed from her uncle is somewhere between 238 and 333 times her calculated annual salary in the hospitality industry at that time.

22. She said that her plan was that if she got the job at the [employer], she would gradually pay back the money to her uncle. She explained that she knew the monthly salary at the [employer] was between VND 5,000,000 to VND 6,000,000 per month, or an average annual salary of VND 60,000,000 to VND 72,000,000. When asked how she was aware of the monthly salary at the [employer], she said someone searched the internet for her about the [employer] paid a [Occupation 1]. She agreed with the Tribunal’s assessment in respect to the above calculation in respect to the annual salary that she would receive if she got that job.

23. At a subsequent time during the hearing, the applicant was given an opportunity to search the internet for the annual salaries paid to [Occupation 1] in Vietnam. The figures she discovered during her search were that on average, the lowest annual salary for a [Occupation 1] in Vietnam would be up to VND 65,641,000, which was an average of VND 5,470,000 per month. Although she was able to provide the lowest, highest and average annual and monthly salaries, which logically looking at this matter, if there was indeed had been a job available to the applicant, she was inexperienced and starting fresh out of college and it could be expected that she would have started at the lowest end of salary scale, and as with most careers, the individual employee would then progress up the pay scale as their experience and skills improve.

24. She was asked to explain over what period of time she had planned to pay back the VND 2,000,000,000 to her uncle. She said that she did not say specifically tell him what period of time that is going to pay the money back. The Tribunal does not accept that any credibility should be given to that answer as it is not plausible there had been no discussion about when she would pay back the loan to a person engaging in black credit and loaned a vast amount of VND 2,000,000,000 to the applicant.

25. She then went on to speculate how she would earn [extra money] to help repay the debt. She claimed that by [the afternoon], she would have finished her work for the [day]. This meant that she could earn extra money by [taking extra work]. She was asked again by the Tribunal to explain over what period of time she intended to pay the money back to her uncle, and it was put to her that there must have been an agreement between them about when that money would be paid back. She claimed that she told her uncle at once she got the job at the [employer] she would pay him back gradually on a monthly basis until the debt was finished and at that time he would return to her the loan documents. When asked how much she was going to repay her uncle back each month, she said that if she got to work some overtime she would be able to pay him up to VND 9,000,000 per month, which the Tribunal finds would be VND 108,000,000 per annum. This is somewhere between VND 36,000,000 to VND 48,000,000 more than what she had earlier said was the annual salary at the [employer].

26. Putting to one side the applicant’s speculation about actually getting the job, and actually getting any overtime if she was fortunate enough to be employed at the [employer], on a basic mathematical calculation, when the VND 2,000,000,000 is divided by the average annual salary of between VND 60,000,000 to VND 72,000,000 she said that she would be earning at the [employer], the Tribunal is satisfied it would take the applicant between 27.7 years to 33.3 years to earn VND 2,000,000,000. That does not take into account what tax she would have to pay on that salary, or the interest that would be charged on the loan, or the usual accommodation and everyday living expenses which she would have otherwise incurred during that period of time. The Tribunal was troubled by her evidence in that regard and finds her evidence to be implausible, not believable and without any credibility.

27. She agreed with the Tribunal that at the time that she was supposedly loaned the money by her uncle, she had not spoken to the [employer] about securing any employment, it was only her broker called [Mr A] that she claimed to have spoken to the [employer]. She agreed that she did not deal with the [employer] directly, everything was done through [Mr A].

28. It was then that she told the Tribunal that [Mr A] gave her some documents which he said was the [employer]’s job application form, but after he ran away with her money she found out that the documents were fake. In the Tribunal’s assessment, her evidence about what took place evolved and developed as the Tribunal progressed through the hearing and asked her questions. This was the very first time the applicant mention or made any reference to anything about documents from the [employer]. This is one of the many examples throughout the hearing when the applicant raised something in her evidence which had not been raised before, or that there was never an earlier occasion when that evidence was referred to. This leads the Tribunal to being satisfied that her evidence about the documents was contrived.

29. The applicant agreed with the Tribunal’s proposition that notwithstanding that she apparently wanted the job at the [employer], there was never an occasion when she contacted the [employer] to verify that a position actually existed or that she sought any other information from the [employer] about that supposed vacancy. She also agreed that she did not show her uncle any documents that would have verified to him what her salary would have been at that [employer], however she claimed that her uncle did not require her to show him any paperwork. The Tribunal is satisfied that amount of money that she claimed was borrowed from her uncle is not in any stretch of the imagination an insignificant, pitiful or small amount and her evidence that she did not show any documents to him that would have at the very least verified that such a job existed, is in the Tribunal’s view, a further example of why her claims that he loaned her VND 2,000,000,000 is unbelievable.

30. In further discussions about the loan which she said she got from her uncle, she said that in Vietnam when you borrow money you have to pay the principal and the interest. Within the entirety of her evidence, this was the only reference she made to the word ‘interest’ and from that, the Tribunal understands that she meant by ‘principle and interest’ as the principal amount loaned, along with any interest affixed to that loan has to be repaid. She made no reference in her evidence to what, if any, interest was affixed to the loan.

31. She went on to say that notwithstanding that she provided no documents about the job to her uncle, her uncle knew all about where her family were. She went on to describe that she was from a poor family and her parents earned a living by her father being a fisherman. Although her mother helped her father buying and selling fish, her mother had got sick and at the time that the applicant had borrowed the money from her uncle, her mother was not working. Clearly from what the applicant was telling the Tribunal, she and her family were from a rural [village] and neither she nor her members of her family were in any way wealthy enough to have any assets of value. This is in the Tribunal’s view that further example of why it is not believable that a lender engaging in black credit would have loaned such a large amount of VND 2,000,000,000 to the applicant. Further to this, the lender would have had serious reservations in lending such a large amount to her because of those reasons just explained.

1. The Tribunal then spoke to the applicant about what happened after she had borrowed the money from her uncle, and then gave that money to [Mr A] who then ran away with the money. She told the Tribunal that she tried on many occasions to contact [Mr A]. She went into panic and was worried about things because she was afraid that the ‘lender’ could have found out what had happened. She talked to her older sister who then helped her prepare the travel documents to travel to Australia as a tourist.

2. As it will be shown shortly in these reasons, this is another example of an inconsistency in her evidence as she later said that she was assisted by an agency to apply for that visa. Furthermore, the Tribunal does not accept that the efforts she made to get a visa to travel to Australia came about because [Mr A] had taken the money and she was worried about the ‘lender’ finding out because she claims this all happened around the start of 2015, yet her application for a Tourist visa was not undertaken until over two years later in 2017.

3. In regard to her employment in Vietnam, in her evidence at the remittal hearing she confirmed that she had never worked in Vietnam as a [Occupation 1], and had only ever worked in the hospitality industry [when] she studied. Even after those studies had finished, she continued to work in the hospitality industry although she was at the same time looking for a job [as an Occupation 1]. She went say that the money she borrowed from her uncle took place in sometime in 2014 to 2015. At this point of the hearing, the Tribunal asked her to explain how she came into possession of the NVD 2,000,000,000 from her uncle, that is, was it in cash or by some other means. She then said that her uncle gave her some of the money in cash and the remainder he deposited into her bank account. She described that he gave her VND 700,000,000 in cash, and the remaining VND 1,300,000,000 was deposited into her bank account. About a week after it was deposited, she withdrew that amount in cash and took it to the meeting with [Mr A]. She was also asked why he had not deposited the entire amount in her bank account, and she claimed that she had no idea why he gave her some in cash and the rest into her bank account. It was confirmed with her that she has never paid any of the money back to her uncle.

4. The applicant was then taken to her application, in particular the part where she discussed the harm that she had experienced in Vietnam prior to travelling to Australia. The highest her application takes it was that she was verbally threatened. She told the Tribunal said that if she ever returned to Vietnam she would be ‘held up by the lender’, and she would be beaten. She added that she would not be able to pay back the money because she does not have that ability to do so. She claimed that prior to leaving Vietnam she told her uncle that she had been scammed and had been cheated by the broker, and her uncle threatened to kill her if she did not pay back the money. The Tribunal observes that her departure from Vietnam was in October 2017, which is approximately two and a half years after she claimed [Mr A] took the VND 2,000,000,000 and ran away.

5. When assessing that timeline of approximately two and half years from the time that she purportedly borrowed the money from your uncle to when she departed Vietnam on a Tourist visa, the Tribunal was mindful of her earlier evidence that she originally came to Australia for a holiday with her sister.

6. The Tribunal then asked her if there had been any difficulties between herself and her uncle during that period between when she got the money to when she applied for her visa to come to Australia. She said that she had been trying to avoid her uncle whenever he was asking her about the money, and there were times when she told him that she still waiting to hear news from the [employer] about the job.

7. She said that it was the time that she was applying for her Tourist visa that he made threats towards her. She said that it took one or two months for the visa to be granted to her. The Tribunal asked her if she could specifically point to a time when that threat was made. She said she did not remember the exact time the threat was made kill her, but she thought that it was sometime around May 2017. If that is the case, then a period of two years had passed from when the money was purportedly loaned to her, and despite never having paid any money back on the loan this is the very first time she had been threatened.

8. She then confirmed that she applied for a Tourist visa soon after she was threatened by her uncle. In attempting to establish with the applicant whether immediately after being threatened by her uncle that she made her application for a visa, or alternatively she waited for a longer period, she was asked to explain how long after she was threatened by her uncle that she made her application for a visa to travel to Australia. She said that she started to apply for her Tourist visa in early June 2017. The Tribunal’s impression about that evidence is that her story evolved as the Tribunal moved through the hearing process and asked her questions.

9. Concerned that she had not understood the question, the Tribunal again asked her how long after, such as days or weeks, she was threatened by her uncle that she applied for her visa. Her response was “as I told you I started to apply for a Tourist visa in early June”. For the third time, the Tribunal again asked her how many days or weeks passed after she was threatened by her uncle that he would kill her that she made her application for a visa to travel to Australia. She then said, “as a told you I do not remember the exact date or the exact time he made the threat, probably in May”. The Tribunal is satisfied that throughout the hearing process the applicant was appropriately assisted by a qualified and certified interpreter. She did not appear to have any difficulties in communicating with or understanding the interpreter when she interacted with the Tribunal. However when pressed on this specific issue that the timings relating to when the threat was made by her uncle, to when she made her application for a visa to travel to Australia, the Tribunal found that she was not confused by the questions, but rather her responses were vague and unconvincing, and she was evasive so far as stipulating the time period between when she was threatened to when she made her application. The Tribunal does not consider (and so finds) that she was not a truthful, reliable or credible witness.

10. The Tribunal is aware that the applicant’s migration history held within the Department’s file shows that she was granted a Tourist visa on 20 June 2017, and she did not arrive in Australia until almost four months later on [date] October 2017. Her visa was valid for a period of three months after her arrival and was due to expire on [date] January 2018. Her application for a Protection visa was not lodged with the Department until 5 January 2018, which is five days prior to that visa expiring. That is a delay issue which is discussed in greater detail later in these Reasons.

11. Returning to the applicant’s evidence at the hearing, she was asked whether she made a complaint to the police about [Mr A] stealing the money from her. She said that immediately after he ran away with the money, she made a complaint the police. When asked whether the police undertook an investigation about her complaint, she said that the police officer told her that there was no evidence of it occurring and the police did not do anything about it. She was then asked whether she knew if the police had spoken to her uncle to confirm that he had given her VND 2,000,000,000. Her response to that question was to say that when the police officer came to tell her that there was no evidence for their investigation, she did not know whether [Mr A] had given any money to police officers, but the police told her that there was no evidence for any investigation.

12. Again, this was a further example of the applicant not specifically responding to the question, or giving a vague response. Although the applicant had been asked whether the police had spoken to her uncle to confirm that he had lent that large amount of money to her, the question was a (in the Tribunal’s view) are very simplistic question which would require no more than a yes or no response, yet she diverted away from that to tell the Tribunal at the police told her that she had no evidence.

13. The Tribunal then went on to identify to the applicant that in fact she did at that time have evidence of the offence, to which she then said that she gave the police officers the job application form and some information from the [employer], however the police told her that this was not adequate evidence to open an investigation, and there is no evidence that she was scammed. Although the applicant said that the police told her that there was no evidence of [Mr A], the applicant’s earlier evidence was that her uncle had deposited a significant amount of VND 1,300,000,000 into her bank account. If that was true, then there would have been bank records from the financial institution where that account was held to show that this amount of money went into her account on a particular date, and then withdrawn from that account at a subsequent date. She made no reference in her evidence to every telling the police about her supposed bank account. On that particular issue relating to her account, the Tribunal observes that she is not provided to the Tribunal any evidence of her ever having a bank account in Vietnam, or that there was VND 1,300,000,000 deposited into any account in her name, or any evidence that this amount had been withdrawn from her account.

14. The applicant was then asked whether her uncle, being the person that loaned her the large amount of money, had been in contact with her since she has been in Australia. She said that he had not been in contact with her, but had visited her family in 2019. She went on to say that he forced her family to communicate with her and he made a threat to kill her. Since then she had to change her SIM card and her phone number.

15. She was asked where she lived in the city of Hue, and whether she remained living at the same address from the time that she borrowed the money to when she left Vietnam to travel to Australia. She then told the Tribunal that she remained living at the same address during all of that time.

16. The Tribunal notes that very earlier on in the hearing, she said that she was living at her village just prior to departing Vietnam and travelling to Australia and the Tribunal is satisfied (and so finds) that this was another example throughout the applicant’s evidence of an inconsistency in her version of the events and her evidence evolved as the Tribunal asked questions. Another example of the inconsistencies in her evidence is that at another point during the hearing she said that she remained living at the same address between when she borrowed the money from her uncle to when she left Vietnam to travel to Australia, however she said that it was around May 2017 that her uncle had made the threat to kill her. When asked whether she was still remained living in that address after her uncle threatened kill her, she said that after the threat she moved addresses so that he could not find her.

17. When the Tribunal asked her why she had changed address, she said it was because she was frightened of the harm her uncle would do to her. When asked whether this was the reason for her coming to Australia, she responded by saying “no, at first when I came to Australia, I came just as a traveller and visiting my older sister”. The proposition was then put to her by the Tribunal that the reason why she came to Australia was not to get away from her uncle, but rather it was for a holiday. She said that initially, she came to Australia for the purpose of a holiday, for the purpose of travelling, however after she stayed in Australia she started to enjoy the culture of living here, the culture of Australia and she has learned from other people that Australia can also protect people running away from harm and she wanted and she wanted to apply for “Australian protection”. She agreed with the Tribunal suggestion that her application for a Protection visa was only made just before her Tourist visa expired. When asked whether it was at that time, when her Tourist visa was about to expire, that she made up of mind to apply for a Protection visa, the applicant said, “Yes”.

18. During the resumed part of the hearing on 16 February 2024, the applicant was asked about her initial application for a Protection visa. She told the Tribunal that she did not type the document, nor did she see the document and read it before it had been lodged with the Department. She explained that she had never met the person who typed the application for her, she was put in touch with this person by someone else and she communicated over the telephone and email with the person who completed her application. She also said she had to pay some money to this person before application was lodged.

19. The applicant was reminded that during the first part of her hearing on 30 January 2024, she told the Tribunal that the person who loaned her the VND 2,000,000,000 was her father’s younger brother, therefore her uncle. She was asked was that still her evidence and therefore, was that still her claim that her uncle loaned her the money. Her response was to confirm that.

20. The Tribunal then explained to the applicant the provisions of section 424AA of the Act in that because she was appearing before the Tribunal, the Tribunal may orally give to her clear particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The Tribunal went on to explain to her that if the Tribunal did that, and the Tribunal must ensure, as far as reasonably practical that she understood why the information was relevant to the review, and the consequences of the information been relied upon by the Tribunal in affirming the decision under review. It was also explained to her that the Tribunal must orally invite her to comment on respond that information, and she chose to comment on a respond then she may seek additional time to do so. It was also explained to her that if she did choose to seek time to respond or comment on the Tribunal was obliged to adjourn the review hearing if the Tribunal considered that she reasonably needed additional time to comment on respond to the information.

21. The Tribunal then outlined to the applicant that her earlier evidence to this Tribunal was that the person who loaned her the money was her father’s younger brother (her uncle). However, notwithstanding that, she had earlier identified this person to a differently constituted Tribunal on 28 January 2022 as a distant relative of her grandfather, which she said was her grandfather’s nephew. It is noted by the Tribunal that she clearly understood the Tribunal’s question because before the Tribunal could complete the question she started communicating with the interpreter in Vietnamese. She told the Tribunal through the interpreter that according to the Vietnamese culture it is the fourth or fifth generation of the paternal side of her grandfather. She went on to say that it was a cultural way of addressing an uncle who is younger but in more of a way of fourth or fifth generation. It was identified to the applicant the Tribunal did recognise that the name of the person who loaned her the money that she gave to this Tribunal was the same name that she gave to the previous Tribunal, albeit it was in reverse order.

22. The Tribunal is satisfied that the applicant’s evidence to this Tribunal is that the person who loaned her the money was her father’s younger brother, [Mr B]. Therefore, as the Tribunal understands it, this person was her uncle, notwithstanding that frequently throughout the hearing she also referred to her uncle as the ‘lender’.

23. After referring to the previous constituted Tribunal, this Tribunal is satisfied that the decision record acknowledges that she referred to the person who loaned her the large amount of money as [name] who was a distant nephew of her grandfather. When carefully assessing the comparison between those descriptions you gave to each of the Tribunal hearings, notwithstanding her explanation that the distinction to the reference to how this person was related to her was a cultural thing in regard to a fourth or fifth generation of her grandfather, the Tribunal particularly notes the differences between the description she gave in regard to how they are related to her. The earlier description was that it was a grandfather’s nephew, and on this occasion, she referred to him as her father’s younger brother.

24. The Tribunal acknowledges and recognises the distinct difference between those two descriptions as to how that person is related to her. The Tribunal is not satisfied that the applicant’s explanation for the discrepancy is and how she described her familial relationship to the lender. In the evidence before this Tribunal, apart from sometimes referencing her uncle as the lender, she was otherwise very clear in her evidence to identify him as her father’s younger brother. Therefore, the Tribunal is satisfied (and so finds) this is another example of an inconsistency in the versions given by the applicant when she has given evidence before the Tribunal. The Tribunal does not accept that the account that you gave on this occasion as to the identity of the lender of the money was reliable or credible.

25. The applicant’s attention was then taken to an earlier comment that she had made to the Tribunal that she had completed a [qualification], and at that time she had financed her education while working in the hospitality [industry]. She had also said that she had also borrowed money from her family members to pay for that education along with the  [lessons], but have not paid the money back to them.

26. She was asked whether her fear of returning to Vietnam was associated with the fact that she had not repaid her immediate family members, or was it all to do with owing her father’s brother that large amount of money which caused her to have a fear of returning to Vietnam. She told the Tribunal that in regard to her fees for her education, she borrowed the money from her uncle, and she borrowed some from her older sister.

27. When carefully assessing that response, the Tribunal is satisfied that this was the very first time that she had referred to her uncle attributing, or loaning any money to her to help pay for her education. The Tribunal is satisfied (and so finds) that this is a further example of an inconsistency in the applicant’s evidence which impacts upon her reliability as a credible witness.

28. It was during the remittal hearing on 30 January 2024 that she frequently said that her uncle loaned her the large amount of VND 2,000,000,000 so that she could secure employment as a [Occupation 1] at a [employer]; and her evidence on that occasion was also that in regard to studying for a [diploma], those costs of those studies were VND 10,000,000, of which she paid between VNBD 3,000,000 to VND 4,000,000 and her parents paid the rest.

29. In addition to that, her earlier evidence in regard to the costs associated with her [studies] were between VND 7,000,000 and VND 8,000,000 of which her parents paid about VND 3,000,000 to VND 4,000,000 and she borrowed the remainder of the costs from her brother and her sister. There was never at any time during her earlier evidence that she made any reference to her uncle funding any part of her educational costs, and therefore the Tribunal is satisfied that her evidence was not consistent, it is unreliable and lacks credibility.

30. The Tribunal also discussed with the applicant her earlier evidence that she worked when she was studying for a [diploma], and she had continued to work in the hospitality industry after she had attained that diploma. She had told the Tribunal on the earlier occasion (30 January 2024) that she had finished her diploma sometime around 2014 to 2015, but she had not worked in Vietnam as a [Occupation 1]. Her attention was then drawn to an entry in her initial application for Protection visa where says that she had previously worked at [an Occupation 1 employer, Workplace 3] in Vietnam.[20] The applicant then told the Tribunal that when she had finished her studies for a [diploma], she did ‘placement’ work at that [Workplace 3] for which she thought was about three months.

    [20]Applicant’s application, Part C, page 17. It is referenced that the applicant was employed at [Workplace 3], Thua Thien Hue Province in Vietnam between January 2015 and November 2017.

1. To repeat what the Tribunal had earlier observed, the amount of money which she claimed she borrowed from her father’s younger brother was not some insignificant or trivial amount, it was multiple times more than the average wage in Vietnam. At that time, the applicant was only working part-time in a [shop] or a restaurant and she had no personal assets. Further to this, there is no evidence to show that her parents or any other member of her family were anything other than living in a small rural area without themselves having any other assets to assist the applicant in repaying this supposed debt to her uncle. The Tribunal is not satisfied that there is any credibility attached to the applicant’s claim that a person, such as her uncle who was engaging in black credit and loaned her a large amount of money would wait for over two and a half years before he made any effort or attempts to (1) locate where she lived, and (2) make an attempt to recover the outstanding debt. Therefore, the Tribunal is satisfied that no weight should be given to the applicant’s account that she had borrowed any money, let alone the amount of VND 2,000,000,000 from her uncle as she claimed.

2. When getting very careful consideration to all of the features of this matter including the delay in the applicant’s making of the application, along with her claim that she borrowed of a large amount of money (VND 2,000,000,000) from her father’s younger brother, along with giving further careful consideration to the evidence provided by the applicant about the circumstances surrounding that claim, the Tribunal is satisfied that the applicant has not been truthful, reliable or a credible witness. There were significant inconsistencies in regard to the evidence she gave about this matter and her evidence was purposely designed to achieve a specific outcome in regard to her refugee status.

3. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied that there are any basis for the claims made by the applicant to substantiate that she has a well-founded fear of suffering significant harm should she return to Vietnam. Because of the findings already outlined in these Reasons, the Tribunal is therefore not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for the reason she claimed if she returned to Vietnam.

4. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Vietnam now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, or she will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will she be subjected to degrading treatment or punishment.

   CONCLUSION: REFUGEE CRITERION

5. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

   CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

6. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, she will be exposed to a real risk of suffering significant harm.

   OVERALL CONCLUSION

7. 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.

8. 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 she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

9. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne 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.

    …

    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.

    …