BRL23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1010
•30 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRL23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1010
File number(s): SYG 1085 of 2023; SYG 1086 of 2023 Judgment of: JUDGE DOUST Date of judgment: 30 June 2025 Catchwords: MIGRATION – judicial review – where Administrative Review Tribunal affirmed delegate’s decision to refuse protection visas – where applicants claimed to fear persecution from loan sharks – where Tribunal not satisfied with applicants’ evidence of circumstances of loan or threats from loan sharks – Tribunal did not adopt legally unreasonable process of reasoning regarding alleged threats from loan sharks or availability of effective state protection measures – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 5K, 5L, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2B)(b), 36B(2B)(b), 423A(2), 476
Migration Regulations 1994 (Cth) sch 2
Cases cited: Applicant WAEE v Minister for Immigration and Multiculturaland Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535; [2020] FCAFC 167
Division: Division 2 General Federal Law Number of paragraphs: 125 Date of last submission/s: 7 February 2025 Date of hearing: 3 February 2025 Place: Sydney Counsel for the Applicants: Mr O Jones Solicitor for the Applicants: Ms K Hoang, Oxford Law Group Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Ms A Wilford, Sparke Helmore Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1085 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: BRL23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
30 JUNE 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 1086 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRM23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
30 JUNE 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
INTRODUCTION
The applicants, BRL23 and BRM23 (referred to in these reasons as BRL and BRM, respectively), are citizens of Vietnam and husband and wife who arrived in Australia on 6 June 2017 as holders of visitor visas and later that month applied to the then Department of Immigration and Border Protection, now known as the Department of Home Affairs (Department) for protection visas.
The applicants each claimed to fear that they would be the subject of reprisals from loan sharks because they had borrowed money and could not repay their debt. BRM also feared that she would suffer discrimination as a Taiwanese woman.
The applications were refused on 24 and 26 April 2018 respectively by a delegate (delegate) of the first respondent (now the Minister for Immigration and Citizenship (Minister)) and the applicants sought review (review applications) of those decisions by the then Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)). The Tribunal held a joint hearing of the applications, producing separate, but very similar decisions on 4 June 2023 (in the case of BRM) and 5 June 2023 (in the case of BRL), affirming, in each case, the decision of the delegate not to grant the applicant the protection visa.
The applicants applied to this Court for judicial review of the Tribunal’s decisions pursuant to s 476 of the Migration Act 1958 (Cth) (Act), and the applications were heard together. The applications allege, in identical terms, that the Tribunal’s decisions contained findings that lacked a logical and rational basis and employed legally unreasonable reasoning. The applicants also alleged that the Tribunal erred in its consideration of the applicants claims for complementary protection pursuant to s 36(2B)(b) of the Act.
For reasons set out below, both applications should be dismissed.
DOCUMENTS
At the hearing on 3 February 2025, the Court had before it:
(1)The court book filed 18 April 2024, containing documents relevant to BRM’s visa application and review application, including the Tribunal’s decision of 4 June 2023 (BRM court book);
(2)The court book filed 24 April 2024, containing documents relevant to BRL’s visa application and review application, including the Tribunal’s decision of 5 June 2023 (BRL court book); and
(3)A transcript of the joint Tribunal hearing of the applicants’ review applications, which was annexed to an affidavit by the applicants’ solicitors (the transcript).
RELEVANT LEGISLATION
The criteria for the protection visas the applicants sought are set out in s 36 of the Act as follows:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(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.
Ineligibility for grant of a protection visa
(2C)A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i)the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii)the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii)the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3)Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5)Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a)the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
Determining nationality
(6)For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
Those criteria are further elaborated in a series of sections.
Section 5H of the Act relevantly provided:
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:
(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.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non - political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.
Section 5J of the Act provides as follows:
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.
Section 5K of the Act provides as follows:
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.
Section 5L of the Act relevantly provides:
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.
Section 5LA provides as follows:
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.
ISSUES FOR DETERMINATION
For the Court to intervene and grant the relief sought by the applicants, it must be persuaded that the Tribunal decisions were affected by jurisdictional error.
Jurisdictional error describes a failure, by a person or body given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of a statutory power, where that failure is of such a character as to warrant the conclusion that the purported decision or purported exercise of power lacks the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; fails to observe some applicable requirement of procedural fairness; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [2]-[3] (LPDT).
In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7].
When the applicants commenced in this Court on 6 July 2023, their applications set out the same two grounds. In the particulars to those grounds the applicants set out how they alleged the errors in each case affected the Tribunal’s decisions.
When the matter was listed for hearing, the applicants sought leave to amend the originating application and to add a third ground of review. The first respondent did not object to the amendment, and leave was granted to the applicants to amend their originating applications accordingly, with the Minister given an opportunity to supplement his oral submissions with a further written submission.
The grounds which were argued at the hearing on 3 February 2025 in each case were as follows (reproduced without alteration):
1.The Administrative Appeals Tribunal made findings that lacked a logical or rational basis and/or adopted a legally unreasonable process of reasoning in making findings in relation to the evidence advanced by the applicants in respect of their loan.
Particulars
(a)In respect of the first applicant’s decision, the Tribunal stated at [21] that in relation to the alleged loan, the first applicant “did not more than repeat that “several billion Dong” had been borrowed from “loan sharks”.
(b)This purported summary of the first applicant’s evidence was incorrect. For example, the first applicant had explained that the loan was entered into in 2014 or 2015, was for about 4 billion Dong, had a 20% interest rate and had a 2 year re-payment period. He further stated that he was threatened by criminal gangs in 2016 in relation to the loan.
(c)In respect of the second applicant’s decision, the Tribunal took into account evidence from the first applicant: [43]. The Tribunal’s error in relation to the first applicant’s evidence therefore infected its decision in relation to the second applicant.
(d)Further, in respect of the second applicant’s decision, the Tribunal stated at [28] that the second applicant “did no more than repeat that “several billion Dong” had been borrowed from “a number of people”, including “loan sharks””.
(e)This purported summary of the second applicant’s evidence was incorrect. For example, the second applicant had explained that the loan was for 4-6 billion Dong.
(f)In respect of the first applicant’s decision, the Tribunal took into account evidence from the second applicant: [38]. The Tribunal’s error in relation to the second applicant’s evidence therefore infected its decision in relation to the first applicant.
(Ground One)
2.The Administrative Appeals Tribunal adopted a legally unreasonable process of reasoning in assessing state protection measures available to protect against the risks posed by loan sharks.
Particulars
(a)The Tribunal set out country information from DFAT that “[s]ome state protection is available” from police in relation to loan sharks, “but its effectiveness is not clear” and police may be “unwilling to unable to investigate or prosecute moneylenders”: first applicant’s decision, [27]; second applicant’s decision, [33].
(b)The Tribunal set out country information from DFAT that “[t]here is a potential for retaliation for unpaid debts”: first applicant’s decision, [27]; second applicant’s decision, [33].
(c)The Tribunal set out country information from DFAT that “people who owe money to loan sharks face a moderate risk of violence”: first applicant’s decision, [27]; second applicant’s decision, [33].
(d)It was legally unreasonable for the Tribunal to conclude at [39] and [42] of the first applicant’s decision and [44] and [48] of the second applicant’s decision that Vietnam is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system.
(Ground Two)
3.The Administrative Appeals Tribunal made an error of law and therefore committed jurisdictional error in addressing the application of the test in s 36(2B)(b) of the Act.
Particulars
(a)In considering the applicant’s claims, the Tribunal purported to address the test in s 36(2B)(b) in relation to protection offered by the State from risk of harm: [48].
(b)In addressing that test, the Tribunal adopted the reasoning set out in its consideration of the test for effective protection measures in s 5LA of the Act: [48].
(c)However, the test for satisfaction of s 36(2B)(b) is different from the test for satisfaction of s 5LA of the Act: Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211.
(d)By treating the tests as the same and/or by answering the wrong question, the Tribunal made an error of law.
(Ground Three)
The grounds are considered in turn below following a recitation of the background and summary of the Tribunal decisions in each case.
BACKGROUND
The applicants BRL and BRM arrived in Australia on 6 June 2017 as holders of visitor visas.
In their respective visa applications lodged on 20 June 2017, the applicants stated as follows (reproduced without alteration):
I LEFT MY OWN COUNTRY BECAUSE DISTRUST OF THE JUDICIARY AND LOW [sic] ENFORCEMENT , POOR SYSTEM OF GOVERNMENT, BUREAUCRACY STARTING FROM THE LOWEST LEVER [sic] UP TO THE TOP. THE DISTRUCTION [sic] OF THE GLOBAL ECONOMY IMPACT ON THE NATION'S ECONOMY. POVERTY AND UNEMPLOYMENT ARE STILL BIG, DUE TO SUCH PROBLEMS, AS THE PEOPLE OF VIETNAM, I HAS BEEN LIVING IN HARSH CONDITION SO I HAD TO BORROW MONEY FROM MY RELATIVES BECAUSE OF THAT I FINALLY COULD NOT PAY THE DEBT. I LIVE IN MENTAL DISTRESS AND FEAR. MANY PEOPLE IN VIETNAM HAVE PROBLEM LIKE ME, WHO BORROWED MONEY HAD BEEN HIT, INJURED AND KILLED.
SO I'M CHOOSE AUSTRALIA TO BEING LIVE MORE BETTER FROM MY COUNTRY. HOPE THE GOVERNMENT OF AUSTRALIA CAN GIVE ME HOPE TO GET AND MAKE CONCIDERATION [sic] TO APPROVE MY APPLICATION FOR PROTECTION.
THE ALL COOPERATION FROM GOVERNMENT AND THE MENISTER [sic] OF IMMIGRATION I WOULD LIKE TO SAY THANK YOU VERY MUCH
…
IF I RETURN TO MY COUNTRY, I WILL GET CAUGHT BY CREDITOR AND COULD BE BEATEN, INJURED OR KILLED. THEY WILL SEARCHING ME.
…
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)
In addition, the applicant BRM responded to a question whether she would be harmed or mistreated if she returned to Vietnam that:
YES I WILL LIVE IN HARSH CONDITIONS, SUFFERED DISCRIMINATION FOR TAWAINESE (sic) WOMEN
The visa applications were refused on 24 April 2018 (in the case of BRL) and 26 April 2018 (in the case of BRM) respectively, and the applicants made separate applications to the Tribunal for review of those decisions on 4 May 2018.
On 22 May 2023, the day prior to the Tribunal’s hearing, the applicant BRM submitted a statement to the Tribunal in which she:
(a)Identified that she and her family belonged to the Unified Buddhist Church of Vietnam;
(b)Claimed that Unified Buddhists are subjected to long-term harassment and discrimination from the Vietnamese government;
(c)Identified that Unified Buddhists supported human rights and progressive social change and had a long history of confronting the government;
(d)Claimed that Unified Buddhists were out of favour with the government, which endorsed its own stream of Buddhism, known as Vietnamese Buddhist;
(e)Claimed that she was frequently harassed by the Vietnamese authorities during religious practice and activities;
(f)Claimed she was not able to find a job as a Unified Buddhist believer, and therefore had to borrow money from a loan shark to establish an aquaculture business;
(g)After borrowing more money, a second harvest failed due to pollution of the water from the Formosa incident, and the applicant could not pay the debt;
(h)The applicant feared herself or her family being beaten by the loan shark; and
(i)The applicant feared she would not be able to practice her religion.
The Tribunal held a joint hearing of the review applications on 23 May 2023.
During the course of the hearing the Tribunal asked questions of each of the applicants whilst the other applicant was not present in the hearing room, including questions about the loan or loans they had taken out.
The BRL Decision
The Tribunal published its decision and reasons in respect of BRL’s (the husband) application for review on 5 June 2023.
In its decision, the Tribunal recited the history of the matter before setting out (at [5] – [11]) the criteria for a protection visa contained in s 36 of the Act and sch 2 of the Migration Regulations 1994 (Cth) (Regulations), as well as the definitions contained in ss 5H, 5J, 5K to 5LA of the Act.
The Tribunal recorded (at [12]) that it had taken account of the Refugee Law Guidelines and the 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).
The Tribunal accepted that the applicant was a citizen of Vietnam and had no entitlement to live elsewhere, accordingly Vietnam was the “receiving country” (at [14]).
The Tribunal then recounted the oral evidence of the applicant, including (at [20]), the oral evidence the applicant had given about their aquaculture enterprise, how the applicants had borrowed money from loan sharks, and how the death of their hatchlings in the Formosa Chemical spill left them unable to repay the loans.
The Tribunal dealt with the applicant’s evidence about the claimed loans at [21], as follows:
21.The Applicant was asked by the Tribunal, a number of times, to provide further details of the specific circumstances of the loans, and of the names of the creditors, however, the Applicant did not ever provide details of any of the claimed creditors, or loans, and did no more than repeat that “several billion Dong” had been borrowed from “loan sharks”.
At [22], the Tribunal observed that the applicant had failed to elaborate on the claims he made in his application about distrust of the judiciary and law enforcement, and his criticism of Vietnam’s bureaucracy and government, and had failed to explain why he had only mentioned loans from relatives in his application without referencing loan sharks or black market money lenders. The latter had first been mentioned in the applicant BRM’s statement given to the Tribunal on 22 May 2023. The Tribunal also noted the absence of any evidence from the applicant BRL referable to claims of discrimination or persecution because he was a Unified Buddhist.
The Tribunal went on at [23] – [26] to record the written submissions and supporting material provided by the applicant’s representative after the hearing. The Tribunal observed that the submission was expressed at a level of historical generality and made no claims in respect of the applicants.
The Tribunal extracted relevant country information at [27], namely, the Vietnam Country Information Report prepared by DFAT, emphasizing in bold and underline the following sections within it (such emphasis removed in these reasons):
…
3.102Illegal 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.
…
3.104There is a potential for retaliation for unpaid debts.
…
3.107DFAT 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.
Formosa Incident:
3.66The 2016 'Formosa' chemical spill was Vietnam's worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.
At [28], the Tribunal commenced its assessment of the applicant’s claims and evidence, dealing first (at [28] – [30]) with the applicant’s religious claims. As these do not feature in the applicant’s grounds, they are not described in further detail herein.
At [31] – [33], the Tribunal dealt with the applicant’s “socio-economic grounds”. At [33], the Tribunal concluded that persons in Vietnam facing difficult socio-economic circumstances were not a “particular social group”. The Tribunal expressed doubt about the applicant’s claim to fear persecution, observing that the DFAT country information indicated Vietnam had experienced rapid economic growth (with GDP growth amongst the fastest in the world since 1990), low unemployment and plentiful employment opportunities, and that internal relocation was common.
The Tribunal turned to the applicant’s fears from creditors and loan sharks at [34] – [39]. At [34], the Tribunal noted that the applicant claimed to fear either persecution for the purposes of s 36(2)(a) (the refugee claim), or risk of significant harm for the purposes of s 36(2)(aa) (the complementary protection claim).
The Tribunal recorded at [35] that the DFAT and other country information indicated that money lenders charging usurious rates were a widespread phenomenon in Vietnam but that the authorities had demonstrated a willingness to tackle the issue. The Tribunal set out some of the material to that effect from the Department of Home Affairs.
The Tribunal went on at [36] to find that the applicants (both BRL and BRM) had been involved in an aquaculture venture that had failed due to the Formosa chemical spill and received what the applicants considered to be inadequate government compensation.
The Tribunal found, as follows (at [38] and [39]):
38.The particulars given by both the Applicant and by his spouse going to the circumstances of the claimed loans have been exceedingly limited, and do not include the names of the creditors or any specific details about the circumstances of the making of the loans, or of any threats that were made to the Applicants in the event of non-payment. When asked about these things by the Tribunal, the answers given by the Applicant, and by his spouse remained generalised, opaque, and non-specific answers, which the Tribunal assesses were part of an effort by each of them to obfuscate the issue, and to keep their claims beyond the reach of necessary examination. In the circumstances, the Tribunal is not able to reach a sufficient state of satisfaction on the evidence to make factual findings, due to a lack of necessary detail and substance in the Applicant's claims. Although the Tribunal accepts that country information from Vietnam reveals that black market money lending is a common phenomenon, and that unpaid debts owed to criminal gangs may - in some circumstances - result in threats and other reprisal action; that fact - in and of itself - is insufficient for the Tribunal to be satisfied that the Applicants have themselves borrowed monies at usurious rates; and in circumstances that now give rise to a credible threat of future harm to them in consequence. Although the Tribunal remains alive to the need to remain sensitive to the evidential difficulties often faced by Applicants, and of the need to generally afford the benefit of the doubt to those who are assessed as creditable, having had an opportunity to assess the Applicant during the giving of his evidence, and to assess the Applicant's supporting evidence, the Tribunal determines that the claims are embellished, and do not present as being creditable.
39.Even if the Applicant did borrow monies from loan shark lenders in Vietnam – a claim on which the Tribunal makes no express finding - the available country information is sufficient to enable the Tribunal to conclude that Vietnam as the receiving state is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system. The Tribunal is therefore satisfied that there are effective protection measures available to the Applicant in Vietnam, consistent with what is outlined in section 5LA of the Act such that the Applicant does not have any basis for a well-founded fear of persecution. Therefore, the Applicant is not a refugee as defined in section 5H of the Act, and the criteria in section 36(2)(a) is not satisfied.
The Tribunal then turned to consider the application of the complementary protection provisions. The Tribunal found as follows:
40.The complimentary protection criteria provides that protection is available in the case of an Applicant for whom the Minister is satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the noncitizen being removed from Australia and returned to a receiving country, there is a real risk that the non-citizen will suffer 'significant harm'. The type of harm that will amount to 'significant harm' are exhaustively defined in s.36(2A) and s.5(1) of the Act, and s.36(2B) sets out circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm. Section 36(2C) further provides circumstances in which a non-citizen is taken not to satisfy the criterion in s.36(2)(aa), and s.36(3) sets out circumstances in which Australia is taken not to have protection obligations in respect of a non-citizen.
41.The threshold for the 'real risk' element in the complimentary protection criterion is the same as that for the 'real chance' test, in s.36 (2)(a). The High Court has held the real chance test in the context of refugee assessment is a substantial chance, as distinct from a remote or far-fetched possibility, although it may still be well below a 50% chance. The requirement that there be both 'substantial grounds' and 'a real risk' suggests that 'substantial grounds' imposes an evidentiary standard, and 'real risk' an assessment of the probability of the Applicant suffering significant harm. The Full Federal Court has stated that an Applicant's credibility will be plainly relevant to the question of substantial grounds for believing there is a real risk. The complimentary protection guidelines also view the 'substantial grounds' requirement in s.36(2)(aa) as directed to the evidentiary standard to be met.
42.For the same reasons as are applicable in the case of its findings as regards protection under s.36(2)(a), and because of the availability of what the Tribunal assesses as satisfactory effective State protection measures against loan shark activity in Vietnam for purposes of s.36(2B)(b) of the Act, the Tribunal is not satisfied that there are now substantial grounds for believing that, as are necessary and foreseeable consequence of being removed from Australia and returned to Vietnam there is now a real risk that the Applicant will suffer 'significant harm' as outlined in s.36(2)(aa) of the Act.
The Tribunal affirmed the decision not to grant the applicant BRL the visa.
The BRM Decision
The Tribunal published its decision and reasons in respect of BRM (the wife) on 4 June 2023.
The decisions were substantially similar, as the discussion below indicates.
The Tribunal recited the history of the matter before setting out (at [5] – [11]) the criteria for a protection visa contained in s 36 of the Act and sch 2 of the Regulations, as well as the definitions in ss 5H, 5J, 5K to 5LA of the Act, and recorded (at [12]) that it had taken account of the Refugee Law Guidelines and the Complementary Protection Guidelines prepared by the Department of Home Affairs and the Country Information Assessments prepared by DFAT.
The Tribunal accepted that the applicant was a citizen of Vietnam and had no entitlement to live elsewhere, accordingly Vietnam was the “receiving country” (at [14]). The Tribunal then noted the applicant’s previous travel to Australia in 2008 (at [15]).
The Tribunal set out the claims that had been made in the primary application (the capitalised text extracted at [22] above), then described the new claims the applicant had made about fearing persecution as an adherent of Unified Buddhism.
The Tribunal noted (at [24]), that the applicant had not made her claims of religious persecution prior to the making of the primary determination; hence, the Tribunal member observed (at [25]), that s 423A(2) of the Act required the Tribunal to draw an inference unfavourable to the credibility of the claim or the evidence if the Tribunal was satisfied there was no reasonable explanation for why the claim was not previously raised or why the evidence was not presented, before the primary decision-maker (being the delegate). The applicant explained that she had not known she could seek protection from religious persecution. The Tribunal member was prepared to accept that explanation and did not draw any adverse inference as to credit solely based on her failure to raise the claim before the primary decision.
The Tribunal then (at [27] and following) recounted the oral evidence of the applicant, including the oral evidence the applicant had given about their aquaculture enterprise, how they had borrowed money from “family friends and neighbours”, and how the death of the hatchlings in the Formosa Chemical spill left them unable to repay the loans.
The Tribunal dealt with the applicant’s evidence about the claimed loans at [28], as follows:
28.The Applicant was asked by the Tribunal, a number of times, to provide further details of the specific circumstances of the loans, and of the names of the creditors, however the Applicant did not ever nominate the names of any her of claimed creditors, and did no more than repeat that "several billion Dong" had been borrowed from "a number of people", including "loan sharks”. The Applicant again repeated that compensation for the chemical spill had been paid by the Government, yet this was wholly insufficient, such that she and her spouse had decided to go to Australia to look for a better life.
At [29], the Tribunal observed that the applicant had failed to elaborate on her initial claims about distrust of the judiciary and law enforcement, her criticism of Vietnam’s bureaucracy and government, and had failed to explain why she had only mentioned loans from relatives in her application without referencing loan sharks or black market money lenders. The latter were first mentioned in her statement given to the Tribunal on 22 May 2023, as the Tribunal similarly observed in its decision in the BRL matter.
The Tribunal also noted (at [30]) the applicant was unable to provide any examples of having been harassed during religious practice sessions, religious studies and religious group activities.
The Tribunal went on at [31] – [34] to record the written submissions and supporting material provided by the applicant’s representative after the hearing. The Tribunal observed that the submission was expressed at a level of historical generality and made no claims in respect of the applicants.
The Tribunal extracted relevant country information at [33], namely the Vietnam Country Information Report prepared by DFAT, emphasising some parts of it using bold and underlined font. The parts emphasised in bold and underlined by the Tribunal are extracted below (with such emphasis removed in these reasons):
3.42DFAT assesses that Buddhists who belong to registered organisations and are not politically active face a low risk of official discrimination. Those engaged in independent sects or unregistered Buddhist organisations face a moderate risk of official discrimination, particularly if they also advocate for political change, including for religious freedom.
…
3.102Illegal moneylending is widespread in Vietnam.
…
3.104There is a potential for retaliation for unpaid debts. This can take different forms, ranging from harassment and public embarrassment to violence.
…
3.107DFAT 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.
The passages extracted in the Tribunal decisions were the same in each case, but the parts emphasized in bold were not.
At [34], the Tribunal commenced its assessment of the applicant’s claims and evidence, dealing first (at [34] – [36]) with the applicant’s religious claims. As these do not feature in the applicant’s grounds, they are not described in further detail herein.
At [37] – [38] (three paragraphs in total as there are two paragraphs numbered 38), the Tribunal dealt with the applicant’s “socio-economic grounds” and indicated that it would deal with the question of the applicant’s capacity to relocate to avoid the loan shark/creditors later in its reasons. The Tribunal concluded that persons in Vietnam facing difficult socio-economic circumstances were not a “particular social group”. The Tribunal expressed doubt about the applicant’s claim to fear persecution, observing that the DFAT information indicated Vietnam had experienced rapid economic growth (with GDP growth amongst the fastest in the world since 1990), low unemployment and plentiful employment opportunities, and that internal relocation was common.
The Tribunal turned to the applicant’s fears from creditors and loan sharks at [39] – [44]. The Tribunal noted that the applicant claimed to fear either persecution for the purposes of s 36(2)(a) (the refugee claim), or a risk of significant harm within the meaning of s 36(2)(aa) (the complementary protection claim).
The Tribunal recorded at [40] that the DFAT and other country information indicated that money lenders charging usurious rates were a widespread phenomenon in Vietnam but that the authorities had demonstrated a willingness to tackle the issue. The Tribunal set out some of material to that effect from the Department of Home Affairs.
The Tribunal went on at [41] to find that the applicants (both BRL and BRM) had been involved in an aquaculture venture that had failed due to the Formosa chemical spill and received what they considered to be inadequate government compensation.
The Tribunal found, as follows (at [43] and [44]):
43.The particulars given by both the Applicant and her spouse going to the circumstances of the claimed loans have been exceedingly limited, and do not include the names of the creditors or any specific details about the circumstances of the making of the loans or any threats made to the Applicants in the event of non-payment. When asked about these things by the Tribunal the answers given by the Applicant and her spouse were generalised, non-specific answers which the Tribunal assesses as having been part of an effort by each of them to obfuscate the issue and to keep the claims beyond detailed examination. In the circumstances the Tribunal is not able to reach a sufficient state of satisfaction on the evidence to make factual findings, due to a lack of necessary detail and substance in the Applicant's claim. Although the Tribunal accepts that country information from Vietnam reveals that black market money lending is a common phenomenon, and that unpaid debts owed to criminal gangs may in some circumstances result in threats and other reprisal action; that fact - in and of itself - is insufficient for the Tribunal to be satisfied that the Applicants have in fact themselves borrowed monies at usurious rates and in circumstances that now give rise to a credible threat of future harm. Although the Tribunal remains alive to the need to remain sensitive to the evidential difficulties often faced by Applicants, and of the need to generally afford the benefit of the doubt to those who are assessed as creditable, having had an opportunity to assess the Applicant during the giving or her own evidence, and her supporting evidence, the Tribunal determines that her claims are embellished, and are just not creditable.
44.Even if the Applicant did borrow monies from loan shark lenders in Vietnam - a claim on which the Tribunal makes no express finding in light of its general dissatisfaction with the available evidence - the available country information is sufficient to enable the Tribunal to conclude that Vietnam as the receiving state is able to provide reasonable protection against persecution by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system. The Tribunal is therefore satisfied that there are effective protection measures available to the Applicant in Vietnam, consistent with what is outlined in section 5LA of the Act such that the Applicant does not have any basis for a well-founded fear of persecution. Therefore, the Applicant is not a refugee as defined in section 5H of the Act, and the criteria in section 36(2)(a) is not satisfied.
The Tribunal then turned to consider the application of the complementary protection provisions. The Tribunal found as follows:
45.The complimentary (sic) protection criteria provides that protection is available in the case of an Applicant for whom the Minister is satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the non-citizen being removed from Australia and returned to a receiving country, there is a real risk that the non-citizen will suffer 'significant harm'. The type of harm that will amount to 'significant harm' are exhaustively defined in s.36(2A) and s.5(1) of the Act and s.36(2B) sets out circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm. Section 36(2C) further provides circumstances in which a non-citizen is taken not to satisfy the criterion in s.36 (2)(aa), and s.36(3) sets out circumstances in which Australia is taken not to have protection obligations in respect of a non-citizen.
[N.B. There was no paragraph numbered 46 in the decision].
47.The threshold for the 'real risk' element in the complimentary protection criterion is the same as that for the 'real chance' test, in s.36 (2)(a). The High Court has held the real chance test in the context of refugee assessment is a substantial chance, as distinct from a remote or far-fetched possibility, although it may still be well below a 50% chance.4 The requirement that there be both 'substantial grounds' and 'a real risk' suggests that 'substantial grounds' imposes an evidentiary standard, and 'real risk' an assessment of the probability of the Applicant suffering significant harm. The Full Federal Court has stated that an Applicant's credibility will be plainly relevant to the question of substantial grounds for believing there is a real risk.5 The complimentary protection guidelines also view the 'substantial grounds' requirement in s.36(2)(aa) as directed to the evidentiary standard to be met.
48.For the same reasons as are applicable in the case of its findings as regards protection under s.36(2)(a),and because of the availability of what the Tribunal assesses as satisfactory effective State protection measures against loan shark activity in Vietnam for purposes of s.36(2B)(b) of the Atchet, Tribunal is not satisfied that there are now substantial grounds for believing that, as are necessary and foreseeable consequence of being removed from Australia and returned to Vietnam there is now a real risk that the Applicant will suffer significant harm as outlined in section 36(2)(aa) of the Act.
The Tribunal affirmed the decision not to grant the applicant BRM the visa.
CONSIDERATION
Ground One
1.The Administrative Appeals Tribunal made findings that lacked a logical or rational basis and/or adopted a legally unreasonable process of reasoning in making findings in relation to the evidence advanced by the applicants in respect of their loan.
Particulars
(a)In respect of the first applicant’s decision, the Tribunal stated at [21] that in relation to the alleged loan, the first applicant “did not (sic) more than repeat that “several billion Dong” had been borrowed from “loan sharks”.
(b)This purported summary of the first applicant’s evidence was incorrect. For example, the first applicant had explained that the loan was entered into in 2014 or 2015, was for about 4 billion Dong, had a 20% interest rate and had a 2 year re-payment period. He further stated that he was threatened by criminal gangs in 2016 in relation to the loan.
(c)In respect of the second applicant’s decision, the Tribunal took into account evidence from the first applicant: [43]. The Tribunal’s error in relation to the first applicant’s evidence therefore infected its decision in relation to the second applicant.
(d)Further, in respect of the second applicant’s decision, the Tribunal stated at [28] that the second applicant “did no more than repeat that “several billion Dong” had been borrowed from “a number of people”, including “loan sharks””.
(e)This purported summary of the second applicant’s evidence was incorrect. For example, the second applicant had explained that the loan was for 4-6 billion Dong.
(f)In respect of the first applicant’s decision, the Tribunal took into account evidence from the second applicant: [38]. The Tribunal’s error in relation to the second applicant’s evidence therefore infected its decision in relation to the first applicant.
The applicant contended that the Tribunal failed to engage in a legally reasonable way with the claims made by the applicants in relation to the loan shark issue. The applicant relied on the decision in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17:
[24]Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness…The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations.
…
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The applicants’ submissions focussed on the content of two paragraphs in each of the Tribunal decisions. In the Tribunal’s reasons in BRL, the paragraphs were [21] and [38]:
21.The Applicant was asked by the Tribunal, a number of times, to provide further details of the specific circumstances of the loans, and of the names of the creditors, however, the Applicant did not ever provide details of any of the claimed creditors, or loans, and did no more than repeat that “several billion Dong” had been borrowed from “loan sharks”.
…
38.The particulars given by both the Applicant and by his spouse going to the circumstances of the claimed loans have been exceedingly limited, and do not include the names of the creditors or any specific details about the circumstances of the making of the loans, or of any threats that were made to the Applicants in the event of non-payment. When asked about these things by the Tribunal, the answers given by the Applicant, and by his spouse remained generalised, opaque, and non-specific answers, which the Tribunal assesses were part of an effort by each of them to obfuscate the issue, and to keep their claims beyond the reach of necessary examination. In the circumstances, the Tribunal is not able to reach a sufficient state of satisfaction on the evidence to make factual findings, due to a lack of necessary detail and substance in the Applicant's claims. Although the Tribunal accepts that country information from Vietnam reveals that black market money lending is a common phenomenon, and that unpaid debts owed to criminal gangs may - in some circumstances - result in threats and other reprisal action; that fact - in and of itself - is insufficient for the Tribunal to be satisfied that the Applicants have themselves borrowed monies at usurious rates; and in circumstances that now give rise to a credible threat of future harm to them in consequence. Although the Tribunal remains alive to the need to remain sensitive to the evidential difficulties often faced by Applicants, and of the need to generally afford the benefit of the doubt to those who are assessed as creditable, having had an opportunity to assess the Applicant during the giving of his evidence, and to assess the Applicant's supporting evidence, the Tribunal determines that the claims are embellished, and do not present as being creditable.
In the Tribunal’s reasons in BRM, the applicant focussed on [28] and [43]:
28.The Applicant was asked by the Tribunal, a number of times, to provide further details of the specific circumstances of the loans, and of the names of the creditors, however the Applicant did not ever nominate the names of any her of claimed creditors, and did no more than repeat that "several billion Dong" had been borrowed from "a number of people", including "loan sharks”. The Applicant again repeated that compensation for the chemical spill had been paid by the Government, yet this was wholly insufficient, such that she and her spouse had decided to go to Australia to look for a better life.
43.The particulars given by both the Applicant and her spouse going to the circumstances of the claimed loans have been exceedingly limited, and do not include the names of the creditors or any specific details about the circumstances of the making of the loans or any threats made to the Applicants in the event of non-payment. When asked about these things by the Tribunal the answers given by the Applicant and her spouse were generalised, non-specific answers which the Tribunal assesses as having been part of an effort by each of them to obfuscate the issue and to keep the claims beyond detailed examination. In the circumstances the Tribunal is not able to reach a sufficient state of satisfaction on the evidence to make factual findings, due to a lack of necessary detail and substance in the Applicant's claim. Although the Tribunal accepts that country information from Vietnam reveals that black market money lending is a common phenomenon, and that unpaid debts owed to criminal gangs may in some circumstances result in threats and other reprisal action; that fact - in and of itself - is insufficient for the Tribunal to be satisfied that the Applicants have in fact themselves borrowed monies at usurious rates and in circumstances that now give rise to a credible threat of future harm. Although the Tribunal remains alive to the need to remain sensitive to the evidential difficulties often faced by Applicants, and of the need to generally afford the benefit of the doubt to those who are assessed as creditable, having had an opportunity to assess the Applicant during the giving or her own evidence, and her supporting evidence, the Tribunal determines that her claims are embellished, and are just not creditable.
The applicants’ counsel in written submissions, referring to [21] in the decision in BRL and [28] in BRM, emphasised that the Tribunal said that the applicants “did no more than repeat that “several billion Dong” had been borrowed from “loan sharks” (emphasis added).
Those paragraphs are essentially the same, however, it is appropriate to observe their differences.
First, in BRM at [28], instead of referring to “loan sharks”, the applicant referred to “a number of people”, including “loan sharks”. That reflected the difference in the evidence given by the applicants. BRL’s evidence was that the couple had borrowed from only one person, whereas BRM’s evidence was that there were a number of persons from whom the couple had borrowed money.
Second, in BRM at [28], the Tribunal only records BRM’s failure to identify the creditors; compared with its observation of BRL at [21], that he had failed to provide details of the claimed creditors or loans.
Third, in BRM, the Tribunal member goes on (at [28]) to note BRM’s evidence that she came to Australia seeking a better life after receiving insufficient compensation following the chemical spill.
The latter observation reflected the evidence given by BRM before the Tribunal. After a series of searching questions about the loans and the loan sharks, the Tribunal member invited BRM to say anything else. BRM returned to the issue of compensation for the chemical spill, saying:
Our business, our enterprise in aquaculture has been affected by the poison released by Formosa. Formosa has not compensated for the loss to us, and the government did not help, did not give us any compensation, sufficient compensation, so we have lost money. We lost faith in the government. That’s the reason why we have done the paperwork to go to Australia, and seek the protection of Australia.
The applicants’ counsel then focussed upon the comments of the Tribunal in [38] of BRL and [43] of BRM that the particulars given by the applicants were exceedingly limited, did not include the names of the creditors or any specific details about the circumstances of the making of the loans, or of any threats that were made to the applicants in the event of non-payment, and the observation that the answers given by the applicants remained generalised, opaque, and non-specific.
Counsel for the applicants contrasted those aspects of the Tribunal’s decisions with the evidence given by BRL concerning the loan. The applicants’ counsel submitted that BRL had answered all the questions put to him.
BRL’s evidence concerning the loan/s at the Tribunal hearing was as follows:
MEMBER MCLEAN-WILLIAMS: Who did you borrow money from?
BRL (INTERPRETER): We borrowed money from people who charged a high interest rate.
MEMBER MCLEAN-WILLIAMS: How many people did you borrow money from?
BRL (INTERPRETER): I borrowed money from a boss who lent money and charged a high interest rate.
MEMBER MCLEAN-WILLIAMS: How many people did you borrow money from? Just one?
BRL (INTERPRETER): One person.
MEMBER MCLEAN-WILLIAMS: How much did you borrow?
BRL (INTERPRETER): About 4 billion, 4,000 million, 4 billion.
MEMBER MCLEAN-WILLIAMS: 4 billion?
BRL (INTERPRETER): Yes.
MEMBER MCLEAN-WILLIAMS: All right. What was the interest rate?
BRL (INTERPRETER): 20%.
MEMBER MCLEAN-WILLIAMS: Over what period of time was the loan?
BRL (INTERPRETER): Two years.
MEMBER MCLEAN-WILLIAMS: How much did you repay?
BRL (INTERPRETER): I did not have the capacity to repay the debt.
MEMBER MCLEAN-WILLIAMS: Did you repay any of it?
BRL (INTERPRETER): No. I paid only the interest.
…
MEMBER MCLEAN-WILLIAMS: When did you borrow the money, what year did you make your loan for the money that you can’t repay?
BRL (INTERPRETER): I borrowed from 2014 to 2015.
MEMBER MCLEAN-WILLIAMS: And when was the money due to be repaid?
BRL (INTERPRETER): We have to repay the debt after the harvest of the products. But [unintelligible 01:17:39].
MEMBER MCLEAN-WILLIAMS: All right, what was the due date for the repayment of the debt?
INTERPRETER: Sorry, put your question again Member?
MEMBER MCLEAN-WILLIAMS: What was the due date for the repayment?
BRL (INTERPRETER): In September 2016.
MEMBER MCLEAN-WILLIAMS: You did not arrive in Australia until May or June of 2017. What happened between September of 2016 and your arrival in Australia?
BRL (INTERPRETER): When I was unable to pay the debt, the creditors just came to my place to threaten me, and to threaten to [unintelligible 01:19:45] my family. We was very scared. I didn’t know what to do. The reason why I applied for a visitor visa to come to Australia, and I know that in Australia I can apply for a protection visa and become a refugee.
MEMBER MCLEAN-WILLIAMS: When were you threatened and who by?
BRL (INTERPRETER): The people who lend money to us have hired the gangs to threaten my family in 2016.
MEMBER MCLEAN-WILLIAMS: Is there anything else you wish to tell me?
BRL (INTERPRETER): I said my country does not need me. So I request you to give me the refugee status, so that I could contribute myself to the economy of Australia, and push the Australian economy to a higher level in the world.
BRM’s evidence concerning the loan/s was as follows:
BRM (INTERPRETER): When we realised that the compensation from the government was not sufficient, we decide to go to Australia to evade the payment of our debt, and also to look for a better life.
MEMBER MCLEAN-WILLIAMS: How big is the debt and who did you borrow from?
BRM (INTERPRETER): We borrow money from our family members, from our neighbours, but we did not have the ability, the capacity to repay the debt. So we have applied for the tourist visa to come to Australia, and to ask for the protection of Australia.
MEMBER MCLEAN-WILLIAMS: I need to know the specific names of the people that you borrowed money from, and the amount.
BRM (INTERPRETER): We borrow between four and six billions.
MEMBER MCLEAN-WILLIAMS: Million or billion?
INTERPRETER: Million, million.
MEMBER MCLEAN-WILLIAMS: Million, all right.
INTERPRETER: Yeah, between four thousand to six thousand million.
MEMBER MCLEAN-WILLIAMS: All right. Who from, and at what interest rate?
BRM (INTERPRETER): We borrowed from friends and also from people who charge high interest rates.
MEMBER MCLEAN-WILLIAMS: How many people did you borrow from?
BRM (INTERPRETER): Well, we have paid part of the debt, but we were very scared and we tried to avoid those people for some time.
MEMBER MCLEAN-WILLIAMS: I need to know how many people you borrowed from, what their names were, and what the interest rates were.
BRM (INTERPRETER): We borrow money from a number of people in the group of people who lend money with high interest rates, and we had to borrow a lot of money because there was a big harvest.
MEMBER MCLEAN-WILLIAMS: What else can you tell me?
INTERPRETER: Excuse me, Member, it was very confusing what she was saying. It’s not consistent. Would you mind if I ask her to clarify again and summarise what she said?
MEMBER MCLEAN-WILLIAMS: Yes, yes, by all means.
INTERPRETER: Because I don’t understand what she was saying.
MEMBER MCLEAN-WILLIAMS: All right.
BRM (INTERPRETER): Our business, our enterprise in aquaculture has been affected by the poison released by Formosa. Formosa has not compensated for the loss to us, and the government did not help, did not give us any compensation, sufficient compensation, so we have lost money. We lost faith in the government. That’s the reason why we have done the paperwork to go to Australia, and seek the protection of Australia.
The applicants’ counsel submitted that the description in [21] of the Tribunal’s reasons was not what had happened at all, and the necessary inference is that the Tribunal did not understand and evaluate the evidence before it in a rational or logical way. Anticipating the first respondent’s argument, advanced in reliance upon Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46], that the Tribunal was not obliged to mention every piece of evidence in its decision, the applicants’ counsel contended that he was not submitting that the Tribunal had failed to consider the evidence, but that it had failed to understand the claims that were made in a legally reasonable way and in a rational, logical and coherent way. The statements in [21] and [28] of the Tribunal’s respective reasons could not be brought into line with the evidence that was given. The inference could be drawn that there was a legally unreasonable approach because the Tribunal’s reasoning contradicted the evidence.
The unstated assumption in the applicants’ argument appears to be that the evidence that was given by BRL in respect of the interest rate and term and timing of the loan, was, of itself, so persuasive, that it could not reasonably be regarded as insufficiently material to warrant mention. It is clear from the Tribunal’s reasons that it did not regard that evidence as persuasive. It did not regard it as persuasive, fundamentally, because the Tribunal was not simply addressing the question whether the applicants had taken a loan. Rather, it was considering whether the applicants were at risk of harm from the persons who had given them the loan.
In considering this ground, the reasons of the Tribunal in respect of each applicant must be read fairly, and in context: AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 at [59]. A commonsense and realistic approach should be taken to understanding the reasons of the Tribunal as a whole to see what it was that the Tribunal was saying: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535; [2020] FCAFC 167 at [27].
The former paragraphs, [21] in BRL and [28] in BRM, appear under the heading “Oral evidence”. The Tribunal provides a brief summary in those paragraphs of the evidence and the impression it gained of that evidence. It does not purport to make findings in those paragraphs. By contrast, [38] and [43] of the BRL and BRM decisions respectively are headed “Assessment of the Applicant’s Claims and Evidence” and contain explicit findings in each case, including in each case, the conclusion that the applicants had embellished their claims.
The terms of each [21] and [28] respectively of the BRL and BRM decisions betray some looseness of language. In those paragraphs the Tribunal says the applicants did “no more” than “repeat” that “several billion Dong” had been loaned from “loan sharks”.
Neither applicant used the phrase “several billion”, nor the word “several” in their evidence. The applicant BRL said they had borrowed four billion, whilst the applicant BRM said they had borrowed between four and six billion. However, the term “several billion” might fairly be used to describe a figure which is either four or six billion or within that range. To the extent the appearance of the phrase in quotation marks suggests that the applicants used that particular term, it is inaccurate.
To the extent the use of “several billion” carries an implication of vagueness, that implication was fairly open to the Tribunal in respect of BRM, who placed the amount borrowed within a range of two billion Dong, half the amount at the bottom of the range she had nominated, and half BRL’s stated quantum of the loan. Given the applicants’ claims were made together, it was open to the Tribunal to have regard to the vagueness of one of the parties in its overall assessment of the evidence.
Whilst neither of the applicants used the phrase “loan shark” or “shark” at the Tribunal hearing (nor in their visa applications), use of that term by the Tribunal in [21] and [28] did not unfairly characterise the applicants’ evidence. Through the interpreter, the applicants had each answered questions about the source of the loan by reference to “people who lend money at high interest rates” (or similar). Both applicants employed that language more than once, including in answer to questions about the specific person from whom they had taken the loan. “Loan shark” was a fair description of the class of persons the applicants had described.
It was not correct, to say, as the Tribunal did at [21] in respect of BRL, that he did not ever provide any details of “the loans”. However, it is clear from the context that the Tribunal was not asserting in some absolute sense that the applicant had given no evidence at all about the loans. In the balance of the paragraph, the Tribunal recites some of the evidence about the loans provided by the applicant; namely, that the loan was for several billion Dong, and had been borrowed from loan sharks. Having regard to the Tribunal’s analysis in [38] (and in [43] in the BRM decision), the Tribunal’s criticism in [21] and [28] about an absence of details should be understood as directed to the absence of the type of details about the loan that the Tribunal regarded as relevant to the applicants’ protection claims.
The applicant’s counsel submitted that any defect in [21] and [28] could not be remediated by reference to the Tribunal’s later reasons at [38] and [43]. It is not clear why that should be so. As set out above, the Tribunal’s reasons should be read as a whole, and fairly, and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In [38] (of the BRL decision) and [43] (of the BRM decision), the Tribunal uses less absolute language than the “no details”, and “no more than” that appeared in [21] and [28], and is more specific about the deficits it observed in the applicants’ evidence. It describes the particulars of the circumstances of the claimed loans provided by the applicants as “exceedingly limited”.
The Tribunal at [38] observes the applicants’ failure to provide any “specific details about the circumstances of the making of the loans or of threats made to the applicants in the event of non-payment” (emphasis added). Two aspects of that passage are significant. First, the Tribunal was concerned about the paucity of the evidence about the circumstances of the making of the loans. The Tribunal was not as concerned with the loan interest rate and period, as it was with how the loan came to be entered into with the persons in respect of whom the applicants now sought protection, and the threats said to have been made by those persons. Second, by qualifying the word “detail” with the adjective “specific”, the Tribunal conveys not that the applicants had given no information, but that such information as it had been provided was not sufficiently precise to persuade the Tribunal that the applicants claims were credible.
So far as the Tribunal observed the applicants’ failure to provide any specific details about the circumstances of the making of the loans that was open to the Tribunal. Neither applicant had described how it was they came to enter into a loan agreement with a loan shark. The statement provided by BRM on the day prior to the Tribunal hearing did not address that issue, nor did either applicant provide any description of that engagement in their evidence to the Tribunal.
So far as the Tribunal found the evidence about the threats lacking specificity, that conclusion was open given the limited detail provided by BRL and BRM in their oral evidence, and in the statement provided by BRM the day prior to the hearing. BRL claimed the creditors came to his place to threaten him, and to threaten his family, and said that the people who lent money hired the gangs. It was open to the Tribunal to regard that evidence as lacking specific detail. BRL gave no detail of what threat had been made to him, to BRM, or to any family members; which threat was made by the creditor and which by the gangs he said had been hired; or how the “gangs” had delivered any threat. BRM’s evidence on that front was little more than an assertion that a threat or threats had been made by gangs. It was open to the Tribunal to expect such details to be forthcoming from BRL and BRM and to find their evidence lacking verisimilitude as a consequence. That detail was not forthcoming either in response to specific questions or in answer to the invitation the Tribunal member gave each applicant to say anything else they wished to say in support of their applications.
The Tribunal went on, in [38] in the BRL decision and [43] in the BRM decision, to conclude that it was unable to make factual findings about the applicants claims. The Tribunal then proceeded to acknowledge country information showing the widespread practice of black market loans, but concluded that information was insufficient for it to be satisfied that the applicants had borrowed money at usurious rates and in circumstances that now gave rise to a credible threat of future harm.
The latter conclusion revealed the Tribunal’s framing of the question before it not as merely whether the applicants had taken a loan, but whether they had taken a loan in circumstances that now exposed them to a risk of harm. The applicants’ claims for protection resided not only in being debtors, but in being persons at a risk of harm from their creditors. A logical and rational decision-maker could, within the area of decisional freedom legitimately available to them, adopt an approach of expecting applicants to provide detail about the persons who posed that risk to them, how they had come to be indebted to such persons, and how they had articulated the threat they posed to the applicants, if their claims were true. Neither that approach, nor the conclusions the Tribunal drew adopting that approach, showed that it failed to consider or understand BRL’s evidence about the details of the loan.
The Tribunal’s findings in [38] in the BRL decision and in [43] in the BRM decision were open on the evidence before it. They were supported by evident and intelligible reasons, and were not arbitrary and capricious. Seen in light of [38], the language of [21] in the BRL decision is the record of the Tribunal’s impression that, having claimed to fear reprisals from their lender, the only detail that the applicants were able to provide concerned the money itself, and not the persons posing the threat because of the failure to repay the money. Whilst the applicants could provide some detail about the loan, they were, so to speak, at a loss to describe the shark. The failure to specifically mention the evidence of the loan rate and term does not support an inference that the Tribunal misunderstood, or failed to consider, that evidence. Rather, given the Tribunal’s focus, not on the loan, but on the risk from the loan shark, the proper inference from that failure is that the Tribunal did not consider the details of the loan term and rate to be material to the question before it: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69].
The Tribunal did not fail to understand or evaluate the applicants’ claims in a legally reasonable way. It adopted an approach to the evaluation of the applicants’ evidence that was open to it in the circumstances. It could not be said that there was only one conclusion open to the Tribunal on the evidence before it, nor that the conclusion reached by the Tribunal was not open on the evidence before it. Nor could it be said that there was no logical connection between the omissions observed in the applicants’ evidence by the Tribunal and the conclusions it reached.
The Tribunal did not err as the applicants contend in ground one of the applications.
Ground Two
2.The Administrative Appeals Tribunal adopted a legally unreasonable process of reasoning in assessing state protection measures available to protect against the risks posed by loan sharks.
Particulars
(a)The Tribunal set out country information from DFAT that “[s]ome state protection is available” from police in relation to loan sharks, “but its effectiveness is not clear” and police may be “unwilling to unable to investigate or prosecute moneylenders”: first applicant’s decision, [27]; second applicant’s decision, [33].
(b)The Tribunal set out country information from DFAT that “[t]here is a potential for retaliation for unpaid debts”: first applicant’s decision, [27]; second applicant’s decision, [33].
(c)The Tribunal set out country information from DFAT that “people who owe money to loan sharks face a moderate risk of violence”: first applicant’s decision, [27]; second applicant’s decision, [33].
(d)It was legally unreasonable for the Tribunal to conclude at [39] and [42] of the first applicant’s decision and [44] and [48] of the second applicant’s decision that Vietnam is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system.
Counsel for the applicants said that it was necessary for him to convince the Court of the merit of the first ground, in order for the following two grounds to have any relevance.
He explained that the second ground, which raises an issue of state protection was relevant both to the applicants’ refugee claim and the claims for complementary protection, whereas the third ground concerned only the complementary protection criteria.
The applicants’ argument in respect of the second ground focused on [35] of the BRL decision. That paragraph read as follows:
35. The Vietnam country information prepared by DFAT, as well as other country information that is available to the Tribunal indicates that money lenders charging usurious rates of interest is a widespread phenomenon in Vietnam. However, it also reveals that the Vietnamese authorities have demonstrated a willingness to tackle the issue. Credible sources have assessed that individuals targeted for unpaid debts are able to obtain Vietnamese State protection. In particular, in the Department of Home Affairs Country of Origin Information Services Section ('COISS') assessment Vietnam, Common Claims Summary (October 2022), the following information is recorded (at page 18), in relation to State protection against loan shark activity in Vietnam:
•Authorities have recognised the seriousness of illegal moneylending and have demonstrated a willingness to tackle the activities of illegal money lenders and loan sharks. The Ministry of Public Security ('MPS') told a UK Fact-Finding Mission ('FFM') in 2019 [that] due to the seriousness of the nature of the crime of 'black credit', and other crimes related to it, the government had directed MPS to control the issue.
•Authorities have used law enforcement to break up the activities of criminal gangs involved in loansharking and issue directives instructing financial institutions to assist people in debt.
•Authorities have targeted loansharking gangs, leading to the arrests of thousands of gang members since 2016.
In the BRM decision, [40] is relevantly identical.
The applicants’ counsel then referred to part of [39] of the decision in BRL (to which [44] of the decision in BRM is identical). It states, inter alia:
39.Even if the Applicant did borrow monies from loan shark lenders in Vietnam – a claim on which the Tribunal makes no express finding - the available country information is sufficient to enable the Tribunal to conclude that Vietnam as the receiving state is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks and that this protection is reasonably durable and consists of an appropriate criminal justice system. The Tribunal is therefore satisfied that there are effective protection measures available to the Applicant in Vietnam, consistent with what is outlined in section 51-A of the Act such that the Applicant does not have any basis for a well-founded fear of persecution…
The applicants’ counsel referred to the extract from the DFAT Vietnam Country Information Report concerning “People who loan money from loan sharks” which appeared at [27] of the BRL decision (and [33] of the BRM decision). That part that report extracted at [27] and [33] was as follows:
People who loan money from loan sharks
3.102Illegal 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.
3.103Some 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.
3.104There 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.
3.105Moneylending 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.
3.106While 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.
3.107DFAT 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.
(emphasis added by the Tribunal removed)
He submitted that the DFAT country information in [27] of BRL and [33] of BRM did not support the conclusion in [35] and [40] respectively that there was effective state protection, and that demonstrated that the Tribunal had employed legally unreasonable reasoning. The Tribunal had treated the further information referred to in [35] and [40] (from the Department of Home Affairs Country of Origin Information Services Section) as consistent with the DFAT information, and it was not. Further, he submitted, the bullet points in [35] are not in themselves adequate to demonstrate effective state protection.
I do not read the Tribunal’s reasons in [35] either as calling the DFAT material in [27] in aid of the proposition in the third sentence in that paragraph that individuals who have been targeted for unpaid debts are “able to obtain Vietnamese State protection”, or as referring only to the DFAT and Department of Home Affairs information. Rather, I read [35] as follows:
(1)The first sentence states, relying on DFAT as well as other country information that is available to the Tribunal (other country information), that usury is widespread in Vietnam;
(2)The second sentence states, by reference to the DFAT information and the other country information (that is, the information referred to in the first sentence), that Vietnamese authorities have demonstrated a willingness to tackle the issue;
(3)The third sentence refers to “credible sources” as having assessed that individuals targeted for unpaid debts are able to obtain Vietnamese State protection; and
(4)The Tribunal commences the fourth sentence with “in particular”, before referring to the Department of Home Affairs information. The Tribunal was referring to a range of sources, not just the Department of Home Affairs, in support of the proposition in the prior sentence.
The Tribunal’s conclusion in the third sentence of [35] about the ability to obtain state protection was not advanced by reference solely to the Department of Home Affairs information. Rather, the Tribunal’s language makes it clear that the Department of Home Affairs was one particular source for its conclusion. As a specialist tribunal, the Tribunal was entitled to have regard to its own stock of knowledge in reaching its conclusions about the situation in Vietnam: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41. In any event, the Tribunal’s satisfaction about the ability of targeted individuals to access state protection was open having regard to the dot-pointed content of [35] and [40]. That was information from which it was open to the Tribunal to conclude that the Vietnamese authorities were genuinely addressing the issue of illegal moneylending, and that its law enforcement bodies were significantly engaged in assisting the victims of the trade.
For the Tribunal to reach its state of satisfaction about the availability of state protection, it was not required to have information before it demonstrating that law enforcement in Vietnam had entirely eliminated all aspects of loan sharking activity and all prospect of violence. Rather, the requirements for such satisfaction are those set out in s 5LA of the Act (which the Tribunal addressed at [39]). The Tribunal was satisfied that the evidence demonstrated there was available to the applicant protection which was accessible and durable and involved a reasonably effective law enforcement and justice system.
The applicant’s counsel contended that the conclusion in [39] (of BRL) – “the available country information is sufficient to enable the Tribunal to conclude that Vietnam as the receiving state is able to provide reasonable protection against persecution or the risk of significant harm by loan sharks” – suggested that the country information to which the Tribunal had referred was all one-way and consistent. That is not an implication from [39], nor would it be necessary for the information before the Tribunal to be all one way or consistent for the Tribunal to be entitled to reach the conclusion it did in reliance on the information.
The Tribunal did not err as alleged and ground two is not made out.
Ground Three
3.The Administrative Appeals Tribunal made an error of law and therefore committed jurisdictional error in addressing the application of the test in s 36(2B)(b) of the Act.
Particulars
(a)In considering the applicant’s claims, the Tribunal purported to address the test in s 36(2B)(b) in relation to protection offered by the State from risk of harm: [48].
(b)In addressing that test, the Tribunal adopted the reasoning set out in its consideration of the test for effective protection measures in s 5LA of the Act: [48].
(c)However, the test for satisfaction of s 36(2B)(b) is different from the test for satisfaction of s 5LA of the Act: Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211.
(d)By treating the tests as the same and/or by answering the wrong question, the Tribunal made an error of law.
(Ground Three)
Ground Three was advanced by reference to the language of the Tribunal in [42] of the BRL decision:
42.For the same reasons as are applicable in the case of its findings as regards protection under s.36(2)(a), and because of the availability of what the Tribunal assesses as satisfactory effective State protection measures against loan shark activity in Vietnam for purposes of s.36(2B)(b) of the Act, the Tribunal is not satisfied that there are now substantial grounds for believing that, as are necessary and foreseeable consequence of being removed from Australia and returned to Vietnam there is now a real risk that the Applicant will suffer 'significant harm' as outlined in s.36(2)(aa) of the Act.
Paragraph [48] of the decision in BRM was essentially identical.
The applicants’ counsel submitted that in [42] of BRL and [48] or BRM, the Tribunal was reaching a conclusion, in respect of the claim for complementary protection, for the same reasons as those it had employed in respect of the applicants’ claim for Convention protection. That was a conclusion which flowed from the Tribunal’s use of the phrase “(f)or the same reasons”, and the reference to “satisfactory effective State protection measures”, which he submitted was a reference to s 5LA of the Act.
However, he submitted, for the purpose of assessing a claim for complementary protection, the question is not whether reasonable or effective protection is available. That is clear from the language of s 36B(2B)(b) of the Act:
(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:…
…
(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
…
The applicants’ counsel relied upon the decision of the Full Federal Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 (MZYYL), in particular, the following passage at [36]:
The Minister submitted that the prescribed standard of protection in s 36(2B)(b) is satisfied (as required by international standards) if the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and the non-citizen has access to such protection. That construction is rejected. It is contrary to the express words of the section. To construe the provision in that way would have the Court ignore or read out of s 36(2B)(b) (and, indeed, other sections in the Complementary Protection Regime) the phrase “real risk” and the reference to the non-citizen. The Minister’s construction seeks to have the Court focus on the system rather than the individual. That is not the question posed by the section…
The applicants’ counsel submitted that it is apparent from the language in [39] of BRL ([44] in BRM) that the Tribunal was concerned there with the refugee test, and translated that across to its consideration of the complementary protection test in [42] of its reasons.
He submitted that because the Tribunal did not make findings about risk, it could only have reached its state of satisfaction approaching the question in a systemic way, which would be correct in a refugee context but not correct in a complementary protection context.
It is not clear that last proposition is correct, having regard to the following passage in MZYYL at [38]:
Further, the Minister’s construction proceeds from an assumption that is contrary to existing authority. In considering an application for a protection visa under s 36(2)(a), courts have recognised that the mere existence of a system of state protection may not of itself be sufficient: see A v Minister for Immigrationand Multicultural Affairs (1999) 53 ALD 545 at [38]-[43]. Unsurprisingly, the particular circumstances of the individual may be determinative: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24].
The applicant’s counsel submitted that the Tribunal identified the right section, and said that it is addressing the correct test, but the reasoning reveals that is not what it has done, and the Tribunal either committed an error of law in treating the tests the same, or in not asking itself the right question, or in identifying the question but not answering it.
He submitted that the Tribunal needed to demonstrate a chain of reasoning that the protection system was available to the applicants, and then reach a state of satisfaction that because of that fact, it would have the result in this case that there was no longer the requisite level of risk. That was not, he submitted, a fair reading of what happened in the Tribunal’s reasons in [42].
That submission should not be accepted.
In [39] of the Tribunal’s reasons, where it was ostensibly dealing with the question posed by s 5LA of the Act, the Tribunal expressed its satisfaction that Vietnam was able to provide reasonable protection both against persecution and “significant harm”, the latter being apposite to the question of complementary protection under s 36(2)(aa) of the Act.
In [42] the Tribunal commenced the expression of its satisfaction as to s 36(2B)(b) of the Act by reference, first, to its earlier satisfaction in respect of s 36(2)(a) of the Act, and additionally, to the “availability of…satisfactory effective State protection measures” (emphasis added). The Tribunal later in that paragraph identified (and answered) the question whether the applicant was at real risk of suffering “significant harm”, the question posed by s 36(2)(aa) of the Act.
The Tribunal was entitled to rely upon a finding of fact it had made whilst assessing a claim for refugee protection when it undertook its assessment of the complementary protection criteria: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774. The Tribunal did not err as the applicants contend in the third ground.
The applications should be dismissed.
The parties should have an opportunity to address the question of costs.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 30 June 2025
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