2316563 (Refugee)

2316563 (Refugee) [2023] AATA 4655 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Anna Woods
CASE NUMBER: 2316563

COUNTRY OF REFERENCE: Vietnam
MEMBER:Nora Lamont
DATE:15 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2023 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – victim of loan shark – physical assault – fear of killing – threats to family – criminal record in Australia – family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 11 August 2023.
The applicant appeared before the Tribunal on 17 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal has before it the Departmental file relating to the applicant. The Tribunal also has a legal submission provided by the applicant’s representative. Further documentation was requested of the applicant and on 28 November the following was provided to the Tribunal: [1]
·Confirmation of applicant’s marriage to [spouse’s name].
·Birth certificate of applicant’s son, [Son A].
·Medical record for the applicant from a treating psychiatrist dated 8 November 2023.
·Applicant’s father’s medical record showing he has heart disease and requires ongoing treatment.
·Evidence of money transferred applicant to the account of [Cousin A], our client’s cousin, in Vietnam.
·Evidence of international money transferred from applicant to one of the lenders, [Person A], in Vietnam.
[1] AAT File, Case Number 2316563, folio 11831676
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old woman born in Hanoi Vietnam. She first arrived in Australia [in] November 2019. She was married in 2001 and separated from her husband in December of 2013, although he remained living in the same house. She has two children, one [age]-year-old daughter who resides with a friend in Ho Chi Min City and [an age]-year-old son who is currently in Australia studying.
The applicant arrived in Australia on a valid Vietnamese passport and claims to be a Vietnamese national. On the basis of the applicant’s oral and written evidence the Tribunal accepts the applicant is a national of Vietnam and her receiving country for the purposes of assessing the applicant’s claims for protection.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) of the Migration Act of 1958 and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Vietnam, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims as summarised by the delegate are as follows:[2]
[2] Department File [Number], TRIM Reference [number]
·The applicant is a separated female from Ha Noi, Vietnam. Her parents, former husband and daughter remain living in Vietnam. The applicant has one [sibling] who lives in [Country 1].
·The applicant fears returning to Vietnam as she will be harassed, assaulted and killed by various money lenders.
·When the applicant was a young child, she was sexually assaulted by her neighbour. She did not reveal this to anyone in her family.
·The applicant completed a [degree] in Vietnam and worked in Ha Noi for approximately 20 years before she travelled to Australia to visit her son.
·The applicant was married to her former husband from 2001 until December 2013 when she separated from him. During her marriage, the applicant’s husband was abusive towards her. In 2011 she was admitted to hospital for treatment after she was beaten by him and sustained a head injury and injuries to her face. The applicant did not report her husband’s behaviour to the police as she believed they would be unresponsive.
·Although the applicant separated from her husband, they continued to live at the same address due to the societal stigma of being separated. She has not formally divorced her husband as he did not agree to this.
·In 2014 the applicant along with a group of people invested in land in Ha Noi and Dong Anh. For this investment, she borrowed money from 14 different money lenders, nine of her family and friends and five loan shark companies. There was no written agreement for these loans. The agreement to borrow money was made verbally and the applicant was required to repay this amount at a high interest rate. The applicant estimates the amount of money she owes to these lenders as $10 billion Vietnamese Dong (approximately $650,000 AUD).
·This land investment was managed by a company named [name] however as this company eventually became bankrupt, the land was sold at a loss for 3 billion Vietnamese Dong (approximately AUD $191 354) and the applicant received approximately one ninth of this amount.
·In 2019 the applicant could no longer afford to repay the interest on the loans each month and borrowed an additional 1.4 billion Vietnamese Dong (approximately AUD $89 066) to pay for her son’s education in Australia. She decided to travel to Australia to secure employment and repay the debt.
·The applicant left Vietnam [in] November 2019 however was pressured to repay the debt.
·In early 2020, after the applicant had arrived in Australia, her parents informed her that two people from one of the money lending companies had attended her home in Ha Noi and made demands to repay the money she had borrowed. They learned that the applicant was in Australia and threatened her family. These people returned in 2021 and 2022. They threatened to harm the applicant’s daughter and as a result, the applicant’s parents and daughter relocated to Ho Chi Minh City.

·Whilst in Australia, the applicant contacted the money lenders and promised to repay the money owed to them.
·[In] August 2021 the applicant was arrested and imprisoned for involvement in the cultivation of a commercial quantity of cannabis. She was introduced to this as a means to repay her debt. She remained in prison until July 2023 when she was released and detained in Immigration detention. Whilst in prison she had limited contact with her family in Vietnam and son in Australia.
·The applicant believes that her father returned to Ha Noi for medical treatment. She is unsure of the current location of her mother.
·The applicant’s daughter is living in Ho Chi Minh City with some friends who work at a [business].
·The applicant fears returning to Vietnam as she will be harassed or killed due to the substantial debt, she owes to 14 different money lenders.
·As the applicant has a criminal record in Australia, she fears that she would not be able to obtain a household registration and access health care or other social services.
·The applicant cannot seek state protection as she does not have any written contracts or evidence of her land investment or money owed to her money lenders. She also considers the police will not provide any protection for her from her former husband.
·The applicant fears returning to Vietnam as a failed asylum seeker with a criminal record, as a separated unemployed mother with a dependent child.
·The applicant delayed in applying for protection due to English language barriers and due to a lack of access to legal representation whilst in prison.
Tribunal Hearing
The applicant was [an occupation 1] for 19 years prior to her arrival in Australia and she claims that she was a specialised [occupation 1]. She told the Tribunal that her husband is [an occupation 2] and she said that he would drink a lot and get violent with her. In 2011, she was hospitalised after they had an argument, and the neighbour took her to the hospital. [Details deleted.] She said that she told the people at the hospital that she fell. The Tribunal queried why the hospital form has the wrong birth date on it. She said that the neighbour who took her to the hospital didn’t know her birthdate and told them that date.
The applicant said that her husband perpetrated sexual violence on her and that she had remained in the same house because she didn’t want people to know they were separated as it is shameful, and that she did not want the children to know. She said that her family did not know, she hid it from everyone.
The applicant has an enormous amount of debt, and the Tribunal asked her how she came to be so in debt and owing so much money to various people. She said that in 2014 she started investing in land and in 2018 or 2019 the investment wanted more money, so she borrowed from family in order to give the investment more money. She couldn’t keep up with the payback, so she took five loans from money lenders, and it became cyclical. She told the Tribunal that she borrowed from eight different people, her aunts and uncles, friends of her father, and friends at work. When asked how she got hooked up with this investment, she said that it was a woman who specialised in real estate. She said that the profit would be 3%. She said that she was making a profit from 2014-2018 but that she had borrowed over 10 million Vietnamese Dong or about $600,000 AUD. The Tribunal asked if she had a contract or paperwork, and she said that the real estate woman has the paperwork.
The Tribunal asked if she had paid back the money to her aunts, uncles, and friends and she said that she has only paid back the interest. When asked if she had a signed contract with the money lenders, she said no.
The Tribunal asked her about her criminal activity, she said that during covid she was reduced in her ability to work, and someone offered for her to clean a house. She went with three other people to the house, but the police came, and she was arrested. She claims that she didn’t know anything about it. She said that she cannot return to Vietnam as she has a criminal record, and they will find out at the border. She also would not be able to make any money as she would not be able to work as [an occupation 1] with a criminal record.
The applicant said that in 2022, the money lenders harassed her father and the family had to go to the south region. Her father had a heart issue and had to go to Hanoi. The Tribunal asked if the money lenders were legal or illegal and she said that they were like gangs. She said that there were 14 different money lenders, 12 family and friends she owed money to, and 5 money lending companies.
Country Information
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26 Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27 Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28 Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees
5.29 Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30 In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32 Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33 Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans (see People who owe money to loan sharks). Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34 Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35 DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals. Those who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically, would be treated in accordance with the procedures set out in Political Opinion (Actual or imputed) and the laws related to illegal emigration might apply to those people. This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. See Race/Nationality.
People who owe money to loan sharks
3.102 Illegal moneylending is widespread in Vietnam. Loan sharking is not necessarily hidden. Usurious loans may be made by ostensibly legitimate moneylending or pawnshop businesses, online advertising in social media or simply posters in the streets. Usury itself is a criminal offence and may lead to other offences related to gangs, money laundering or violence.
3.103 Some state protection is available from the police, but its effectiveness is not clear. Police may proactively seek out loan sharks but debtors may be reluctant to approach the police. Police may also be unwilling or unable to investigate or prosecute moneylenders because there is typically no written evidence of the loan. This is particularly true in recent years as much loan sharking activity has moved online during the COVID-19 pandemic and the identity of the moneylender may not be clear to the debtor.
3.104 There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence. These actions might be carried out by hired thugs contracted by creditors, and members of families might also face harassment, threats or violence for family Members’ unpaid debts. Moneylending and migration are commonly linked and the reason for the loan may have been to fund a people smuggler in the first place. 3.105 Moneylending is commonly linked to people trafficking. People are expected to pay money at each stage of the journey and are then held in servitude with the threat of violence where they owe money. Victims of trafficking may be used as recruiters for new victims to pay off their debts.
3.106 While limited information is available about loan shark victims, DFAT was able to ascertain from in-country sources that gangs in general have national and international reach, sometimes in the form of informal networks rather than gangs. It is not clear if those gangs are involved in loan sharking but, if they are, the threat of violence could exist in different parts of the country. This would not apply to those who have borrowed money from smaller, non-gang lenders.
3.107 DFAT assesses that people who owe money to loan sharks face a moderate risk of violence that may be mitigated by relocation. If the money was borrowed from gangs, especially large organised crime gangs, then the risk of violence even after relocation is higher. If the money was lent by smaller lenders or small street gangs then the risk following relocation is much less.
Credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: - stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203): The benefit of the doubt should, however, should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
Findings on credibility and claims
The Tribunal does not accept that the applicant suffered abuse from her husband and that she was hospitalised from his abuse in 2011, separated from him in 2013, yet remained living in the same house until she departed for Australia some six years later. The hospital record does not have the same birthdate as the applicant and the Tribunal does not accept that it is a record of the applicant. Whilst the applicant explained that the neighbour took her to the hospital and did not know her birthdate, the applicant was [a professional occupation 1] and worked in a [specialised environment]. One would assume that she knew how to read the hospital paperwork, correct any mistakes and that she understood the system enough to take the relevant paperwork with her or at least keep a copy for her records.
The applicant said that the children didn’t know about the abuse as he was abusive when they were at school, and that she wanted to keep the family together. She stated that she didn’t sleep in the house but maintained that she remained living at the house to protect herself and the children from people knowing about the abuse. The applicant claims that she worked night shift meaning she would be sleeping during the day when the alleged abuse happened. With no real evidence before it the Tribunal does not accept that the applicant was in an abusive relationship and that she separated from her husband in 2013 and continued to live in the same house until she came to Australia and that she did not divorce her husband. The applicant’s evidence was not credible in relation to this claim.
The Tribunal does not accept that the applicant would be a member of the following social groups: single mother with a dependent child, a woman in Vietnam who left a marriage, separated mothers in Vietnam, separated mothers over the age of 35, or separated mothers with a criminal record, or any other social group for purposes of protection. The applicant claims that her daughter is living with her friend. The applicant has been away from her daughter since 2019. The applicant said that the last time she spoke to her husband was when she was in prison, and that he had her daughter on the phone as she was not allowed to speak with her daughter from prison. This indicates that the applicant’s husband has an ongoing relationship with his daughter and that he sees her. There is no evidence before the Tribunal that the applicant would be a single parent of a dependent child. At the moment, the child is not with her mother nor is she dependent on her mother. There is no indication before the Tribunal that the applicant’s daughter would rely on her mother as a single parent. It is entirely possible the applicant’s daughter could reside with her husband or that she is already living with the applicant’s husband.
Further, the applicant appears to have a large extended family which she claims to have borrowed money from, as well as a large group of friends she borrowed funds from, and these people especially her relatives would be able to support the applicant and her daughter upon her return to Vietnam. If they are willing to lend the applicant so much money the Tribunal considers that they would also assist with the applicant’s family matters and her daughter.
Country information suggests that while there is a stigma attached to being divorced and single there is no official discrimination: [3]
Single and divorced women
3.82 Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.
3.83 In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.
3.84 Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.
3.85 Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.
3.86 DFAT assesses that single women and divorcees do not face official discrimination but do face a moderate risk of societal discrimination.
[3] DFAT Country Information Report Vietnam January 2022 p23.
The applicant fears that she will come to the attention of the authorities at the border due to her criminal record. Whilst double jeopardy could occur in Vietnam when a citizen is prosecuted for the same crime, they were convicted of in a foreign country DFAT is not aware of any cases of double jeopardy:[4] Therefore, the applicant does not face a real chance of double jeopardy upon return to Vietnam.
Double Jeopardy
5.11 Double jeopardy would occur when a Vietnamese citizen is charged and convicted with a crime in another country, and then returns (or is returned) to Vietnam and is prosecuted for the same crime. Article 6 of the Penal Code gives broad extra-territorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law. In-country sources have told DFAT that the provisions may only apply theoretically. DFAT is not aware of cases of double jeopardy in practice.
[4] DFAT Country Information Report Vietnam January 2022 p30.
The Tribunal accepts that the applicant has borrowed some money from lenders and relatives. It further accepts given that she owes the money that the money lenders have come looking for her at her family home wanting payment. However, there is little evidence of how much she borrowed, from whom and when however, based on the applicant’s oral evidence, the Tribunal accepts that she owes a lot of money to various people. The Tribunal is not however satisfied that the applicant borrowed the money for an investment scheme. There is no evidence of the investment fund the applicant claims she borrowed the money for. She does not have any paperwork related to it, no signed documentation or contracts, or anything associated with the real estate scheme.
The Tribunal has considered that the applicant came to Australia seeking to make money to pay for her son’s schooling and to pay off her debts in Vietnam not for the other reasons claimed. The Tribunal does not need rebutting evidence before it, it can lawfully find that a particular factual assertion made by an applicant is not made out. [5]
[5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
For these reasons, whilst the Tribunal accepts that the applicant has borrowed money from relatives, friends, and money lenders, it does not accept that the applicant is separated from her husband, lived in the same house with him after separation, that he abused her, and she was hospitalised in 2011. Therefore, the Tribunal does not accept that if the applicant returns to Vietnam she faces a real chance of persecution from her husband, the authorities, or money lenders. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Vietnam, there is a real risk that the applicant will suffer significant harm from her husband, money lenders or their associates. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36(2)aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
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.
…

[2023] AATA 4655

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction