1704387 (Refugee)

1704387 (Refugee) [2021] AATA 1507 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704387
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Alison Murphy
DATE:8 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 08 April 2021 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – applicant unable to participate meaningfully in hearing because of cognitive impairment, mental health and interpretation difficulties – tribunal’s obligation to complete review on available evidence – inconsistencies and lack of details – fear of harm from illegal moneylender and police – business lost in storms and floods – threats to family since applicant’s departure – member of particular social group – homeless people with mental illness – country information – inadequate services and social stigma but no systematic and discriminatory conduct – complementary protection – real chance of significant harm – no protection by authorities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1), (4)(c), 5L(c)(iii), 36(2)(a), (aa), (2A), (2B)(b), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
CSV15 v MIBP [2018] FCA 699
MIAC v MZYYL (2012) 207 FCR 211
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that she was not satisfied Australia owed protection to the applicant.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on an apparently genuine Vietnamese passport, a copy of which is contained on the Departmental file. He entered on a family visitor visa sponsored by his brother and that file contains his Vietnamese birth certificate, national identity card and household registry records. The applicant has at all times stated that he is a citizen of Vietnam and he has been assessed on that basis by the Department. The Tribunal finds he is a Vietnamese citizen and has assessed his claims against Vietnam as his country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year-old male from the town of Thua Thien-Hue, Vietnam. He is one of six siblings, with one brother now living in Australia and the remainder of his siblings in Vietnam. His elderly father lives with his younger brother in Vietnam, while his mother is deceased.
The applicant is educated to approximately year nine level. He worked as an [Occupation 1], running his own business for a period until his equipment was washed away and his business destroyed in about 2007. His visitor visa indicates that after that he worked for [a] company in Hue for approximately three years before he travelled to Australia [in] May 2010. At hearing the applicant stated that after losing his business he also worked as [an Occupation 2] and [Occupation 3] when that work was available.
The applicant told me he had argued with his brother in Australia several times when he first arrived and had left his house more than 10 years ago and not seen him since. He said he had not contacted his family in Vietnam for the last couple of years because of his sadness. He last had contact with his elderly father through the Facebook page of his niece and nephew in Vietnam a few years ago and he is aware his father has since undergone surgery for a tumour. He is not in touch with his other siblings in Vietnam.
I accept each of the above matters to be true.
The applicant’s mental health and capacity to meaningfully participate in the hearing
Medical evidence before the Tribunal suggests the applicant may lack the capacity to meaningfully participate in the hearing. The matter was first listed for hearing on 25 September 2019 but was rescheduled on three occasions at the request of his representative who was struggling to engage with him due to his anxiety and vulnerability and having difficulties arranging a mental health assessment.
Medical evidence later submitted to the Tribunal suggests the applicant was first seen by [Dr A] from [Medical services provider] in July 2017 for ‘complex medical and social issues’ including homelessness, mental health assessment and treatment for a number of physical illnesses. He was assessed as being medically unable to work.
A letter from his GP, [Dr B], in October 2019 states the applicant is suffering severe anxiety and depression due to the uncertainty of his visa status and financial stress. It suggested that if he were granted the right to work, his symptoms may improve. In October 2019 he was also referred for a mental health assessment by his case co-ordinator, [Mr C], from [Organisation 1], who noted he appeared anxious, unable to maintain eye contact with a shaky voice and visible shaking, often crying and lacking concentration. A letter dated 4 November 2019 from [Mr C] notes that the applicant becomes very anxious when in contact with persons in authority and is fearful of emergency services, struggling to engage with and communicate with [Organisation 1] staff and very hesitant to take up recommended referral options.
[Ms D], psychologist from [Organisation 2], reports the applicant was referred for assessment in November 2019 and presented as significantly concerned and anxious, evidenced by involuntary rhythmic muscle movements from his hands. It was noted that upon assessment the applicant struggled with understanding and answering simple questions and appeared unable to think clearly or logically. It was reported that although the applicant had not been formally assessed, he appeared to suffer from significant cognitive impairments that are interfering with his functional abilities including self-care, concentration and task completion, behaviour, planning and decision making and work/training capacity. Later correspondence from [Ms D] to [Mr C] in April 2020 reports the applicant was discharged from [Ms D]’s counselling services after declining that service and [Mr C] reports he was concerned about the applicant’s mental health because he had stopped his anti-depressant medication, was denying any mental health issues and cried during the meeting with their staff.
In February 2020 [Dr E], consultant psychiatrist, reviewed the applicant at the referral of his GP. [Dr E] noted that it was a difficult interview, with the Vietnamese telephone interpreter having difficulty understanding the applicant. He was observed to be agitated and depressed with poor self-care and commenced on Avanza and a plan to see him again with a face to face Vietnamese interpreter. In July 2020 [Dr E] reported that he had seen the applicant three times but he had not attended a further appointment with a face to face interpreter. [Dr E] reported that he could not answer questions about final diagnosis, treatment, prognosis etc and suggested the applicant be referred to a Vietnamese speaking psychiatrist.
The applicant was subsequently referred to a Vietnamese speaking psychologist, [Mr F], who has provided a psychological report dated 31 January 2021. It was recorded that the applicant reported feeling down at times and worried about uninterrupted sleep but tended not to endorse a lot of symptoms of anxiety and depression, although it was clear that he was anxious with a downcast gaze and displaying very little facial expression. It was noted that the applicant had no family history of mental illness and was unable to remember whether he had previous experience of being down for a prolonged period of time. [Mr F] noted that the applicant appeared to be suffering from symptoms suggesting an underlying anxiety disorder, however, due to the communication difficulty and his general guarded engagement it was difficult to be certain of his underlying clinical picture. [Mr F] was of the opinion that the applicant was likely to be suffering from an anxiety disorder, most likely a Generalised Anxiety Disorder or alternatively an Adjustment Disorder with Mixed Anxiety and Depressed Mood, although he stressed these were possible working hypotheses and not definitive diagnoses.
At hearing the applicant’s extreme vulnerability and distress were evident, with the applicant often shaking and crying during the hearing. He was at all times anxious to co-operate and answer the Tribunal’s questions. He was able to recount his own personal history briefly but appeared not to understand many of the Tribunal’s other questions, particularly concerning his mental health conditions and treatment. On many occasions his answers were non-responsive and he had to be repeatedly prompted back to the original question, which often went unanswered. Although some of the medical reports suggest the applicant disagrees he suffers from a mental health condition, at the hearing he agreed he suffered from depression and anxiety, saying it had started since he arrived in Australia because of his worries about his legal status and paperwork. He described his ‘sadness’ as the reason he was no longer in touch with his family in Vietnam. He told me he was not taking anti-depressant medication and didn’t know whether he had done so in the past. He said he was unable to work because he lacked legal documentation and a tax file number and couldn’t get work. He said he was seeing a counsellor every few weeks and this had helped him a bit.
I accept the applicant is suffering from some kind of anxiety and/ or depressive disorder, noting the difficulties his treating professionals have had engaging with him mean that he has not yet been formally assessed and diagnosed. I accept that he is also experiencing some cognitive impairment, although the lack of formal assessment means that there is no information before me as to whether this is a symptom of his mental health condition or a separate condition.
The applicant’s representative advised that her organisation had carefully considered whether the applicant had capacity to give them instructions and had formed the view that he did, noting that he appeared to understand why he was here and the nature of the decision under review. While I accept their assessment of the applicant’s capacity to instruct his legal representative, I remain concerned at his obvious inability to understand or respond to many of the Tribunal’s questions at hearing.
On the basis of the medical evidence before me, and the applicant’s presentation at the Tribunal hearing, I conclude the applicant does not presently have the capacity to meaningfully participate in the hearing. I note the hearing was rescheduled on several occasions at the request of the applicant’s representative due to their concern about his mental health conditions. A further hearing had to be rescheduled due to the difficulty obtaining an interpreter who could interpret in the applicant’s specific Hue dialect and the medical reports indicate that has also been an issue in his treatment.
The medical evidence suggests the applicant’s mental health condition arises at least in part out of his extreme anxiety about his unresolved visa status and financial hardship in Australia. Given the numerous unsuccessful attempts by multiple agencies to refer him for assessment and treatment over several years and the serious communication difficulties arising out of both his highly specific language needs and apparent cognitive impairments, I consider it unlikely that the applicant will have a greater capacity to participate in a Tribunal hearing in the foreseeable future.
Where an applicant lacks the capacity to participate in a hearing for the foreseeable future, the Tribunal remains under a statutory obligation to complete the review without delay on the evidence that is before it. In this case, that is the written and oral evidence of the applicant as well as country information discussed with the applicant at the hearings.
I accept that any inconsistencies or lack of detail in the applicant’s evidence are explained by his medical conditions and his communication difficulty. I accept he has little comprehension of his mental health condition or the possible benefits of treatment. I make no adverse credibility findings, and draw no adverse inferences, from his evidence.
The applicant’s claims for protection
In his protection visa application, the applicant stated that he left Vietnam because of problems including distrust of law enforcement and the judiciary. Because of economic conditions, he had to borrow money from a creditor to survive, which he could not repay. Many people have similar problems and are killed or injured so he decided to flee to Australia. If he returns to Vietnam, he will be caught by his creditor and beaten, injured or killed. He experienced many threats to harm him in Vietnam for which he tried to seek help many times. He could not get help because it was a personal matter and the creditor is a gangster. Many times he moved to avoid the creditor but they still found him and continued to threaten him.
At hearing the applicant gave evidence that was broadly consistent with the claims in his protection visa application. He stated that he was working in Hue as an [Occupation 1] [doing job tasks]. He borrowed money from family and friends to start his business and buy tools and equipment. He also met with a loan shark called [Mr G] and arranged to borrow money to start his business. His borrowings totalled VND80,000,000 (about AUD4,500).
A few years before he came to Australia in 2010, Hue was hit by severe storms and flooding and his tools and equipment were lost. He lost his business and had to stop working. After that he worked as [an Occupation 2] or [an Occupation 4] anytime he could.
He does not remember the interest rate on the loan from [Mr G] and does not know how to calculate the amount now outstanding with interest. For the couple of years he remained in Vietnam he always promised to pay [Mr G] back, but he was unable to repay the money. He came to Australia in 2010 with the hope he would have a future in this country. [Mr G] did not threaten him while he was in Vietnam, but after he left Vietnam he heard through his family that the money lenders had threatened to kill him unless he repaid the loan.
I accept the applicant’s evidence at hearing to be true. While he was not able to provide a great deal of detail, his evidence was spontaneous and consistent with the claims in his visa application and he became extremely agitated and distressed at the prospect of returning to Vietnam, telling the Tribunal that he could not survive there, that they knew his face and would kill him and that he would be murdered or assassinated if returned. When asked if he could receive protection from the police, the applicant became even more distressed saying he would never go to the police, that they were fearsome and very dangerous and when you meet the police you must fear them more.
When I discussed with him that he had stated in his visa application that he had sought assistance on many occasions in the past, the applicant vehemently denied he had done so saying that he would never approach the police, they were very aggressive and if you make even a small mistake they will call you to their station and smash you. When asked if the police had harmed him before, he stated they had but became very distressed when asked to elaborate, saying it was a long time ago and he did not clearly remember.
When asked if he remembered making his protection visa application, the applicant said he did not and he thinks someone else made it for him. I accept this to be the case, noting that it is written in English and it is clear the applicant could not have completed it on his own. For that reason where the applicant’s evidence differs from the statements made in the visa application, I prefer the applicant’s own evidence.

On the evidence before me, I accept the applicant was working as an [Occupation 1] when he borrowed money from a loan shark to buy tools and equipment for his business in or about 2007. In making this assessment I note DFAT’s advice that illegal moneylending is widespread in Vietnam, largely due to the complicated nature of accessing bank loans, and interest rates are often extortionate. DFAT cites a 2018 UK Home Office report that found some borrowers who were unable to repay loans were trafficked or forced into labour or prostitution. While police investigations into illegal money lenders have reportedly increased, police face difficulties in convicting illegal moneylenders as the loan terms are not typically documented[1].
[1] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 2.49
I accept the applicant’s business was lost when severe floods and storms hit Hue city in 2007 and his tools and materials were washed away. Country information reports that thousands of people were forced from their homes in Thua Thien-Hue in multiple flooding events in 2007.[2] I accept the amount borrowed was VND80,000,000 and that debt is likely far larger now given accumulated interest.
[2]
I accept the applicant’s evidence that his family members in Vietnam have received threats since his arrival in Australia, noting DFAT’s advice that sources have reported money lenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans.[3] I accept that if the applicant is returned to his home area in Vietnam, there is a real chance the money lenders will pursue him and seek to harm him over his outstanding debt.
[3] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 5.33
Refugee assessment
The applicant fears being harmed or killed by the money lenders from whom he borrowed money if he is returned to Vietnam. I have considered whether the applicant will face persecution for reasons of his membership of a particular social group such as ‘persons owing money to loan sharks in Vietnam’ or some similar construction. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be directed at a person for the ‘essential and significant reason’ of their membership of the particular social group (s.5J(4)(a)). At hearing, I invited the applicant’s representative to make submissions about these claims and she said they acknowledged the applicant’s claims against the money lenders to be personal and in any event considered they were outweighed by the seriousness of his claims relating to his mental health.
I do not consider that [Mr G] and his associates would seek to harm the applicant on his return for reasons of his membership of the particular social group ‘persons owing money to loan sharks in Vietnam’, rather I consider their motivation would be their personal desire to recover the debt from him and to seek revenge upon him to punish him if he is unable to pay. For these reasons I am not satisfied that the applicant satisfies the requirements set out in s.5J(4) of the Act.
It is submitted by the applicant’s representative that if returned to Vietnam, he will face persecution for reasons of his membership of the particular social group ‘homeless people with mental illness in Vietnam’. For the reasons set out above, I have accepted the applicant is suffering from some kind of anxiety and/ or depressive disorder that is not yet formally assessed and diagnosed. I have accepted that he is also experiencing some cognitive impairment, although it is not known whether this is a symptom of his mental health condition or a separate condition. The medical evidence suggests the applicant has at some times been homeless in Australia and at the time of the hearing he was reportedly living in a garage. Given the applicant’s mental health conditions and lack of family support, I accept he may indeed be homeless if returned to Vietnam.
Section 5J(1)(a) provides that a person has a well-founded fear of persecution if, among other things, the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I accept that ‘homeless people with mental illness in Vietnam’ and similarly constituted groups may comprise a particular social group for the purposes of s.5L, considering that group is identifiable by the common characteristics of its members’ mental illness and homelessness and that it is a cognisable group within Vietnamese society pursuant to s.5L(c)(iii).
DFAT reports that around 10% of Vietnam’s population or nine million people were estimated to be affected by mental health issues and around 200,000 of those were estimated to be seriously mentally ill. It states:
2.24 A 2015 government report found that mental health issues were estimated to affect around 10 per cent of the population (approximately 9 million people), of which 200,000 people were classified as severely mentally ill. A draft National Strategy on Mental Health (2018-2025), with a view to 2030, prioritised the provision of healthcare to poor regions, those in difficult situations, and ethnic minorities and other vulnerable groups. A 2018 joint UNICEF, the Ministry of Labour – Invalids and Social Affairs (MOLISA), and ODI study of Mental Health and Psychosocial Wellbeing among Children and Young People in selected provinces and cities in Vietnam reinforced that mental health and psychosocial problems were widespread and increasing in Vietnam, and, despite some progress, the service environment and response remained largely inadequate. The lack of mental health services was particularly acute in remote provinces and services often focused on severe mental health disorders. The report recommended the Government approve and implement the National Strategy, supported by budgetary allocations and collaboration among different sectors. It remains unclear, however, whether the strategy has been approved by the Government of Vietnam.
2.25 Currently, mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools. The Ministry of Health is responsible for health centre and hospital services to diagnose and provide treatment for serious and persistent mental illness stemming from neurological conditions and developmental disabilities. MOLISA provides social support policies for social protection beneficiaries and services for serious cases. The Ministry of Education and Training provides psychosocial counselling units in schools and life-skills training.
2.26 NGOs are increasingly providing mental health and psychosocial related services, and familial and community-based support is also common. In 2011, the government introduced a program for social support and community-based rehabilitation for people with mental illness for the period 2011 to 2020 (known as Decision 1215). This program focuses on the family and community provision of spiritual and material support, and rehabilitation. Herbal medicine and shamanism are also used to treat mental illness in some areas. Due to remoteness from mental health service providers, lack of awareness, and adherence to ethnically based community practices, those suffering from mental health issues will often take herbal remedies and perform certain rituals before seeking formal treatment. The 2018 MOLISA study also found that, while explicit stigma toward mental health patients was declining, many people were still reluctant to access mental health services due to perceived stigma[4].
[4] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 2.24 – 2.26
Consistently with the information contained in the DFAT report, the applicant’s representative submits that mental health services are lacking in Vietnam, particularly in regional areas, and the limited available services are directed at those with severe mental disorders. I have also been referred to other country information, which indicates spending on mental health by the five lower middle income countries in the Asia Pacific, including Vietnam, is low, stating that ‘[F]unding is the elephant in the room’. It notes there are several other widely-shared weaknesses in these countries which explains their poor results, including unclear policy environments, the lack of specific mental health laws and institutional capacity and a relatively undeveloped level of understanding of what it takes to implement mental health legislation and policy[5].
[5] The Economist Intelligence Unit Briefing Paper Mental Health and Integration: Provision for Supporting People with Mental Illness: A Comparison of 15 Asia Pacific Countries
A further article submitted by the applicant’s representative suggests that Vietnam, like most developing countries, has traditionally relied on information support systems such as families, faith based organisations and community organisations to provide monetary and social support to people in need of help and that such groups are not able to provide the intensive and professional care that persons with severe mental health disorders require. It reports that Vietnamese people with severe mental health disorders can seek treatment from two major formal systems, being health care facilities belonging to the Ministry of Health and social support and rehabilitation centres operated by Vietnam’s Ministry of Labour, Invalids and Social Affairs (MOLISA), which presently services approximately 15,000 people with severe mental health disorders. It reports that while these centres are 100% funded by government and made great efforts to provide care to clients, ‘the funding never met the actual needs of the clients being served at the centre’ and many important and systemic issues remained. These issues identified included variations among the centres in terms of availability of medical equipment and services, the severe lack of professionals trained in mental health care and inadequate staff/client ratios, chronic problems with retaining staff due to low salary and heavy workload, insufficient budgets and overcrowded and substandard living conditions. It noted that there had been stories in the Vietnamese media about the abuse and maltreatment of clients at MOLISA centres, largely due to the lack of training and resources and excessive workloads of staff[6].
[6] ‘Reviewing the latest national policies and services for people with severe mental health disorders in government-funded institutions in Vietnam, and police recommendations for service improvements’ Asia Pacific Journal of Social Work and Development 2018, Vol 28, No 1, 56-58
Another source indicates that mental illness-related stigmatisation remains prevalent in Vietnam, impairing patients’ access to adequate and effective mental health care services and influencing the help-seeking behaviours of patients and caregivers[7]. The submissions before the Tribunal also cite a number of other sources which indicate that there is a lack of comprehensive care for people in severe mental illness in Vietnam and that only schizophrenia and epilepsy are considered national priorities, despite the high prevalence of depression. The country information before me indicates that persons with mental illness experience limited and inadequate access to health services and there exists a level of stigma towards persons experiencing mental illness. As set out above, DFAT reports that while explicit stigma toward mental health patients is declining, many people were still reluctant to access mental health services due to perceived stigma[8]. I accept all of these matters to be true.
[7] Boge, Kerem ‘Multilevel Assessment of Public Attitudes and Stigma towards Psychiatry and Mental Illness in Vietnam; 6 March 2020
[8] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 2.24 – 2.26
However the definition of ‘persecution’ for the purposes of the refugee assessment must also involve ‘systematic and discriminatory conduct’ as set out in s.5J(4)(c). The mere impact of circumstances which an applicant may face in the future will not constitute persecution for the purposes of ss 5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons. Further, s 36(2)(a) does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.[9]
[9] CSV15 v MIBP [2018] FCA 699 at [31] and [34].
Rather the feared persecution must be discriminatory and directed towards persons for the essential and significant reason of their race, religion, nationality, political opinion or membership of a particular social group.[10]
[10] Applicant A v MIEA (1997) 190 CLR 225 at 233.
In Applicant A v MIEA, McHugh J said:
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. …
Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group [emphasis added].[11]
[11]Applicant A v MIEA (1997) 190 CLR 225 at 233 at 258. See also MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [73].
At hearing I raised the issue as to whether any lack of effective medical treatment the applicant may face on return to Vietnam would arise from systematic and discriminatory conduct as required by s.5J(4)(c), noting that harm arising from a lack of resourcing of and/or limited access to mental health services in Vietnam may not on its own constitute persecution.
It is submitted that stigma against ‘homeless people with mental illness’ is widespread in Vietnam and that Vietnam’s inadequate and ineffective mental health service is a direct result of the government’s discrimination against persons with mental illness. It is submitted that if the applicant is returned to Vietnam, he will face direct and indirect discrimination for reasons of his membership of the particular social group and he will be denied treatment and likely treated as a drug addict and detained in a drug rehabilitation centre (06 centre), where he will face systematic and discriminatory treatment amounting to serious harm.
For the reasons set out above, I have accepted that there continues to be a level of stigma directed towards mental health patients in Vietnam, noting that DFAT assesses this to be declining. I have also accepted that there is a lack of comprehensive care for people in severe mental illness in Vietnam and persons with mental illness experience limited and inadequate access to health services. For those reasons I accept the applicant may be unable to access adequate mental health care should he be returned to Vietnam.
However, having considered the country information submitted by the applicant’s representative in the pre and post hearing submissions as well as the DFAT report, I do not accept the applicant will be discriminatorily denied medical treatment for the essential and significant reason of his mental illness by the Vietnamese authorities as submitted.
In making this assessment I note the Australian courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor. I consider that the weight of the country information before me indicates that the lack of accessible and effective mental health treatment in Vietnam results not from the intentional discrimination of the Vietnamese authorities towards persons experiencing mental illness but from the combination of a number of complex issues including funding constraints, the lack of trained professionals and equipment and the lack of institutional capacity and unclear policy environments discussed above[12]. For these reasons, I am not satisfied that any lack of access to mental health treatment that the applicant may experience on return to Vietnam would involve systematic and discriminatory treatment directed at him for the essential and significant reason of his mental illness as required by s.5J(4)(c) of the Act.
[12] The Economist Intelligence Unit Briefing Paper Mental Health and Integration: Provision for Supporting People with Mental Illness: A Comparison of 15 Asia Pacific Countries
It is submitted that as a homeless and mentally ill person, the applicant is at risk of an arbitrary detention in a drug rehabilitation centre (06 centre). DFAT reports that 06 centres are compulsory treatment centres for people who use drugs, which have operated in Vietnam since the 1980s. Drug users typically spend 12 months in 06 centres (although some stay much longer) where they are forced to stop using drugs. DFAT reports that in-country sources assess that conditions in those centres are worse than in prisons[13], an assessment shared by other sources cited in the applicant’s submissions.
[13] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 2.27 – 2.32
I do not accept there to be a real chance that the applicant will be detained in an 06 centre, noting it is not suggested that the applicant is, or ever has been, a user of illicit drugs. While a news article cited in support of this submission suggests that the centres sometimes house other marginal groups, including the mentally ill, the homeless and the elderly, it reports that the more than 65,000 drug addicts cycled through Vietnam’s 06 centres between 2014 and 2016 are a mix of compulsory patients sent by police with those admitted by relatives. While I accept that some of the persons housed in those centres may be drug users who are also mentally ill, homeless or elderly, I do not accept there to be a real chance that the applicant will be detained in an 06 drug rehabilitation centre when he is not and never has been a drug user.
For these reasons I am not satisfied the applicant meets the criteria set out in s.5J(4)(c) of the Act and therefore he does not come within the meaning of a refugee contained in s.5H.
Complementary protection
In considering whether the applicant will be subjected to significant harm for the purposes of the complementary protection criteria, the Tribunal notes that ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
For the reasons set out above, I have accepted that there is a real chance that the applicant will face harm from [Mr B] and his associates if he returns to his home area of Hue in Vietnam, now or in the reasonably foreseeable future. I accept that harm may include the intentional infliction of severe pain or suffering on the applicant, whether physical or mental, such as would constitute ‘cruel or inhuman treatment or punishment for the purposes of s.36(2A). For these reasons I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Vietnam, there is a real risk that he will suffer significant harm.

I have considered whether the applicant could obtain protection from the Vietnamese authorities such that there would not be a real risk that he would suffer significant harm as per s.36(2B)(b). In MIAC v MZYYL[14] the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one. DFAT reports that the People’s Public Security Forces of Vietnam (PPSFV) is the country’s main police and security force and it operates at the national, provincial, district and commune levels. International observers report that corruption is highly prevalent within police ranks. DFAT assesses that police have limited ability to provide protection to civilians and are vulnerable to corruption and typically act with impunity[15]. In these circumstances, I am not satisfied that the applicant could obtain protection from an authority in Vietnam, such that there would not be a real risk that he will suffer significant harm.
[14] MIAC v MZYYL (2012) 207 FCR 211 at [40]
[15] DFAT DFAT Country Information Report: Vietnam 13 December 2019 at 5.6 – 5.9
I have considered whether it would be reasonable for the applicant to relocate to another part of Vietnam, outside his home in Hue city, where there would not be a real risk that he would suffer significant harm from [Mr G] and his associates. However, the combination of the applicant’s mental health and cognitive issues which currently render him unable to work together with his lack of financial resources or family support cause me to consider that relocation is not reasonable in his particular circumstances.
I am satisfied that the significant harm the applicant faces is one faced by him personally, not by the population generally and that the applicant is not precluded from being owed protection by the operation of s.36(2B)(a), (b) or (c) of the Act. There is no evidence before me that would indicate that the applicant has a right to enter and reside in any third country for the purposes of s.36(3) of the Act and I find that he is not excluded from Australia’s protection by s.36(3) of the Act.
For these reasons I am satisfied the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1507

8 April 2021

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