Federal Court (Full Court). Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm? Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?
The Tribunal said at [60]–[61] (emphasis added):
The features in the applicant’s evidence described above are such that the Tribunal remains unsatisfied that any of the applicant’s claims of past harm are true. Whilst the Tribunal is prepared to accept that the applicant may have been involved in [vehicle] businesses in Vietnam and may still have some business debts, the Tribunal is not satisfied that the applicant was harmed by corrupt government officials who had asked her to pay bribes or by officials who had invested in her businesses or by any gangsters engaged by such officials. The Tribunal is not satisfied that the applicant was threatened or that her children have been threatened by officials, police officers, gangsters or any creditors. The Tribunal is not satisfied that the applicant had a genuine fear of serious or significant harm at the time she departed Vietnam in 2015. The Tribunal is not satisfied that the applicant has a genuine fear of serious or significant harm at the time of this decision. The Tribunal is not satisfied that there is a real chance or risk that the applicant would be threatened, killed, arrested, falsely prosecuted or subjected to another form of serious or significant harm at the hands of, or at the behest of, government officials or police officers in Vietnam.
To the extent that the applicant may experience any difficulties as a consequence of any business debts, the Tribunal is not satisfied on the evidence before it that such harm would be for any of the reasons set out in s 5J(1)(a) of the Act for the purposes of the refugee criterion in s.36(2)(a) In considering the complementary protection criterion in s.36(2)(aa), the Tribunal considers it plausible that if the applicant had unpaid creditors they may have in the past harassed her to repay her debts and that there is a real risk that they may continue [to] do so again. The applicant has not claimed to have been threatened or otherwise harmed by these creditors in the past (although she has speculated that this might happen in the future) and the claim was not raised in the visa application. Given the Tribunal's findings above relating to the applicant’s credibility and subjective fear of harm, the Tribunal is not satisfied that the applicant faces harm from any creditors amounting to significant harm as defined.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that, "the fact that the Tribunal could have regard to anterior findings about the refugee criterion does not mean that it could misapply the complementary protection criterion when having regard to those anterior findings"?
Question 2: Is it an element of the complementary protection criterion that the visa applicant have a subjective fear of harm?
Question 3: Can it be said that, "while the Tribunal took into account its finding that it did not believe that the appellant “genuine[ly]” feared significant harm as a relevant factual circumstance in finding that the complementary protection criterion was not met, this does not mean that the Tribunal treated a subjective fear of harm as a necessary element of the complementary protection criterion"?
Question 4: Can it be said that "the question of whether a visa applicant will suffer significant harm in their receiving country involves an assessment of the individual circumstances of the non-citizen", including whether or not they suffered harm in that country in the past?
Question 5: Is "a person’s subjective belief is a mandatory irrelevant consideration for the purposes of the complementary protection criteria"?
The FCAFC answered those questions as follows: