2108722 (Refugee)

2108722 (Refugee) [2022] AATA 2514 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Timothy Haines
CASE NUMBER:  2108722
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nathan Goetz
DATE:6 June 2022
PLACE OF DECISION:  Sydney
The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 June 2022 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – complementary protection – significant harm from compulsory detention as methadone user or lack of treatment for physical and mental health conditions – returnee after significant period abroad and capacity to subsist – arrived on humanitarian visa and application made after permanent visa cancelled – extensive criminal history, imprisonment and mental health treatment – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
GBV18 v MHA [2020] FCAFC 17
GLD18 v MHA [2020] FCAFC 2
Hands v MIBP [2018] FCAFC
NBMZ v MIBP [2014] FCAFC 38
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review applicant by registered migration agent 0301422.
BACKGROUND
The applicant identifies as a [age]-year-old male who was born in (then) South Vietnam. The applicant arrived in Australia [in] August 1985 holding a special humanitarian programme visa. This was a permanent visa.
On 27 January 2005 the Department commenced a cancellation of the applicant’s Class BF Transitional permanent visa under s 501 of the Act. On 11 May 2005 the applicant’s visa was not cancelled.
On 15 January 2020 the Department commenced another cancellation of the applicant’s BF Transitional permanent visa under s 501 of the Act. The applicant’s visa was cancelled on 25 May 2020. On 12 June 2020, the applicant applied for revocation of the cancellation. On 21 September 2020 the cancellation was not revoked. On 28 September 2020, the applicant commenced review of the non-revocation decision with the Tribunal. On 14 December 2020 the Tribunal affirmed the decision.
On 26 February 2021 the applicant applied for a protection visa.
At the Tribunal hearing, the Tribunal raised the fact that there had been a two-month delay in applying for the protection visa following the decision to cancel his previous visa being affirmed. The Tribunal raised this delay because delay in applying for a protection visa can demonstrate that the applicant did not have a genuine fear of serious harm in Vietnam or that there was no risk to the applicant of significant harm as a result of his removal from Australia.
The explanation provided at the Tribunal hearing was that the applicant was hospitalised during this period and that, as a prisoner under sentence, he did not have the same freedom to efficiently attend to his migration matters as would a person in the community. A subsequent submission from the applicant’s representative noted that there was discussion between the applicant and his representative about whether to lodge judicial review of the Tribunal decision of 14 December 2020 or lodge a protection visa. Having reflected on that matter, the Tribunal is satisfied that nothing adverse can be drawn against the applicant concerning the timing of his protection visa.
On 24 June 2021 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act. On 4 July 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant him the protection visa.
On 20 January 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled to commence at 10:30am on 4 February 2022. The applicant was invited to appear at a Tribunal hearing to give evidence and present arguments relating to the issue arising in relation to the decision under review because the Tribunal was unable to make a decision favourable to the applicant on the material it had. As the applicant was in criminal custody and the prison where the applicant was being held did not have capacity for an audio-visual link, the Tribunal determined that a telephone hearing was appropriate.
On 4 February 2022 the applicant appeared at the Tribunal hearing. The applicant’s migration agent also appeared at the Tribunal hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent Department of Foreign Affairs and Trade Country Information Report on Vietnam was published on 11 January 2022. Where relevant, the Tribunal has referred to the information contained in that report in this Decision Record.
CONSIDERATION
The Tribunal has considered the relevant contents of the delegate file, the Tribunal file, the submissions and documents submitted by the applicant, and what was said at the Tribunal hearing.
According to the applicant’s protection visa application form, the applicant is known both as [the applicant] and [Alias 1]. He was born in Saigon, Vietnam. He claims Vietnamese citizenship and does not claim to have a right to enter and reside in a third country (that is, a country other than Vietnam and Australia). He was in a relationship from 1 February 1987 until 31 December 1998 and is now separated.
He stated in the protection visa application form that he left Vietnam in 1985 because of the communist takeover. After a period in jail following an attempted escape, he was forced to spend time on the streets, having no support and no prospects of employment or safety, with a total lack of government support and loss of his official identity. He wrote that escape was the only option because the country was in complete turmoil following the Vietnam war. The communists were targeting anyone who was known not to sympathise with them. The applicant claimed that the communists cancelled his identity documents after his release from prison and that meant he could not get any accommodation, employment or assistance.
He detailed that he last arrived in Australia [in] August 1985 at Darwin, having left Vietnam from Ho Chi Minh City. He departed Vietnam ‘illegally’ by boat to [a] Camp in [Country 1]. He entered Australia holding a SHP K4671 visa which was issued at the refugee camp in [Country 1]. He was assessed for refugee status by the UNHCR and he was in a refugee camp from [December] 1984 to [August] 1985. He has not travelled to any other country in the last 30 years.
The form also identified his current address as [named] Prison, South Australia. He detailed his family members as his ex-partner [Ms A], his mother [Ms B], his brother [Mr C], his brother [Mr D], his sister [Ms E], and [Ms F] as the partner of his second son.
He declared that he had been found guilty of a crime and attached his criminal history. The criminal history as detailed in that attachment was as follows:
·     [Magistrates’ Court 1] [in] January 1991 he was convicted and sentenced to a bond for cultivating cannabis.
·     [Magistrates’ Court 2] [in] September 1991 he was convicted and sentenced to a bond for theft of a motor vehicle.
·     [County Court 1] [in] November 1991 he was convicted and sentenced to suspended imprisonment for recklessly causing serious injury.
·     [Magistrates’ Court 2] [in] June 1992 he was convicted of attempted theft, two charges of theft, and burglary and he was sentenced to 6 months imprisonment.
·     [Magistrates’ Court 1] [in] July 1992 he was convicted of two charges of burglary, theft possession of a drug of addiction and sentenced to 3 months imprisonment. He was also found guilty of breaching a previous suspended sentenced and the suspended sentenced was partially restored.
·     [Magistrates’ Court 1] [in] May 1994 he was convicted and sentenced for shop-theft and imprisoned for 1 month.
·     [Magistrates’ Court 1] [in] August 1996 he was convicted and sentenced for two charges of trafficking heroin, theft of a motor vehicle, wilful damage, unlawful possession, possession of heroin, possession of a regulated weapon and use heroin. He received a total effective sentenced of 9 months imprisonment wholly suspended for 2 years and fined a total of $500.
·     [Magistrates’ Court 2] [in] April 1997 he was convicted of theft, burglary, criminal damage, two charges of possession of a drug of dependence, criminal damage, possess heroin, use of a drug of dependence, resist police or person assisting police, use heroin, fail to answer bail, and loitering. He received a total sentence of 12 months imprisonment wholly suspended for 2 years.
·     [Magistrates’ Court 2] [in] April 1997 he was convicted of burglary, theft, going equipped to steal/cheat and use of a drug of dependence. He was sentenced to 6 months imprisonment.
·     [Magistrates’ Court 3] [in] January 2000 he was convicted and sentenced to 12 months and 109 days imprisonment for attempted theft, possession of property being proceeds of crime, interfering with a motor vehicle and loiter with an intent to commit an indictable offence. He was convicted and discharged without penalty for failing to answer bail and using heroin. A non-parole period was set for 5 months.
·     [Magistrates’ Court 3] [in] January 2000 he was convicted and fined for being a known thief loitering in a public place.
·     [Magistrates’ Court 1] [in] June 2000 he was convicted and sentenced to 12 months, 9 days imprisonment for aggravated burglary, burglary, three thefts, attempted burglary, possession of property being the proceeds of crime, intentionally damaging property and possession of a regulated weapon with a non-parole period of 6 months.
·     [Magistrates’ Court 1] [in] August 2000 he was convicted and sentenced to 4 months imprisonment for burglary and theft.
·     [Magistrates’ Court 1] [in] March 2002 he was convicted and sentenced to community work for seven charges of interfering with a motor vehicle.
·     [Magistrates’ Court 1] [in] March 2003 he was convicted and fined for theft of a motor vehicle, failing to answer bail and possession of heroin.
·     [Magistrates’ Court 1] [in] October 2003 he was convicted and imprisoned for eleven charges of burglary, eleven charges of theft, three charges of aggravated burglary, attempted burglary and two charges of theft. He was convicted and fined for failing to report to police where an owner was not present following a car accident.
·     [Magistrates’ Court 1] [in] October 2005 he was convicted and imprisoned for possessing heroin and possessing cannabis. He was also convicted and discharged without penalty for using cannabis.
·     [Magistrates’ Court 1] [in] September 2008 he was convicted and fined for two charges of theft and two charges of failing to answer bail.
·     [Magistrates’ Court 1] [in] March 2011 he was convicted and sentenced an intensive correction order for three charges of burglary, attempted burglary and failing to answer bail.
·     [Magistrates’ Court 1] [in] August 2013 he was convicted and fined from possession of a drug of dependence and failing to answer bail.
·     [Magistrates’ Court 4] [in] March 2019 he was discharged without penalty for failing to comply with a bail agreement.
He also advised that he had outstanding criminal charges as follows:
[Magistrates’ Court 4] [in] March 2019, namely failure to comply with a bail agreement.
[Magistrates’ Court 5] [in] April 2019, namely cultivation of a commercial quantity of cannabis, possession of prescribed equipment, interfering with an electricity meter, and trafficking in a commercial quantity of cannabis.
At the Tribunal hearing the Tribunal was told that the applicant is currently serving a sentence of imprisonment of 2 years and 7 months imprisonment with a non-parole period and that he is eligible for parole in July 2022. The end date of the sentence is July 2023.
Whether the applicant has a criminal history is irrelevant to the Tribunal’s task of assessing whether Australia owes the applicant protection obligations under s 36(2)(a), (aa) or whether the applicant meets s 36(2)(b) or (c).
Preliminary case management issues
The applicant requested that the Tribunal take oral evidence from [Mr G] and [Mr H] who were identified as the applicant’s respective [age]- and [age]-year-old sons, as well as oral evidence from [Mr I], a psychologist.
The request related to the applicant’s two sons was based on the applicant’s children and their spouses offering to financially and emotionally support the applicant, and that this support can only be provided in Australia and not remotely. The support from the applicant’s children would be an insurance against the applicant committing further offences and would ensure that the applicant would access ‘requisite treatment.’ The applicant had previously provided the Tribunal with a written statement from the applicant’s sons dated 30 August 2021. The Tribunal found it would be unnecessary for the applicant’s sons to give oral evidence and repeat the content of their statement at the Tribunal hearing, and having read the statement, it contained an amount of material that was irrelevant to whether the applicant was owed protection obligations under the Act, meaning that repetition of irrelevant material would cause the Tribunal hearing to be unnecessarily prolonged. The applicant was advised that the Tribunal would not take oral evidence from his sons at the Tribunal hearing.
The request related to [Mr I] was based on [Mr I] giving evidence about the treatment needed by the applicant and the treatment plan that the applicant had agreed to. His oral evidence was about the applicant’s mental health condition, his needed for treatment, and the ‘likelihood of the applicant receiving this treatment in Vietnam as opposed to Australia.’ The applicant had provided the Tribunal with several reports by [Mr I] and the Tribunal found it would be unnecessary for [Mr I] to repeat the contents of his report at the Tribunal hearing, as this would unnecessarily prologue the Tribunal hearing. The applicant was advised that the Tribunal would not take oral evidence from [Mr I] at the Tribunal hearing.
Claims raised by the applicant
The way the applicant presented his review application for the Tribunal’s consideration was not satisfactory. Material was provided in a piecemeal approach over the time that the review application was with the Tribunal, instead of all being provided within 14 days of the lodgement of the review application as required by Practice Direction 5 of the Migration and Refugee Division Practice Directions from 2 August 2018. This has required the Tribunal to go through the electronic record to ensure that it has considered everything the applicant put to the Tribunal, which was a laborious task and could have been avoided by the applicant complying with the practice direction. The piecemeal approach of the applicant sending information to the Tribunal makes a good case for the Tribunal refusing to accept documentation by email, as this facility has appeared to encourage the approach taken by the applicant.
With the piecemeal approach taken by the applicant, the Tribunal wanted to ensure that it understood the applicant’s claims in their entirety and to not be distracted by information that was not relevant to the applicant’s protection claims. At the Tribunal hearing the Tribunal asked the applicant through his migration agent to tell the Tribunal the protection claims that were being made.
The applicant conceded through his migration agent that he did not face a real chance of serious harm in Vietnam due to his race, religion, nationality, membership of a particular social group or political opinion. The applicant claimed that he met the complementary protection criteria, namely that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vietnam, there was a real risk he would suffer significant harm. It was put to the Tribunal that the real risk of serious harm would be the fact that the applicant, as a methadone user, would be liable to detention in a ‘601’ treatment facility upon his return to Vietnam. It was suggested that this would have a likely negative effect on the applicant’s underlying health conditions, including risk of suicide. This argument developed through the course of the Tribunal hearing to include the alternative that, in the event that the applicant was not detained in a ‘601’ treatment facility in Vietnam, he would face significant harm because he would not receive treatment for his various medical conditions, including PTSD, drug dependency which is treated by methadone, hepatitis A and C, bipolar disorder, social and generalised anxiety disorder, and mixed personality disorder.

The claim made at the Tribunal hearing expanded upon the applicant’s claim made in the protection visa application form about what he thought may happen to him if he returned to Vietnam. In the form the applicant wrote that Vietnam has a national methadone ‘treatment’ program (which he asserted was nothing but a prison in reality where people are forced to do hard labour). The applicant claimed that in his present physical state in combination with his age would not allow him to participate in hard labour and that he would likely die if required to undertake that labour.
The applicant provided a copy of the DFAT Country Information Report on Vietnam dated 13 October 2019 in support of the claim that he would be detained in a treatment facility upon his return to Vietnam. Relevantly, that report provided the following (commencing at 2.28):
“Compulsory treatment centres for people who use drugs, known as ’06 centres,’ have operated in Vietnam since the late 1980s. Drug users in 06 centres are forced to cease using drugs, while voluntary patients are able to access treatment. According to unofficial date, 30,000 drug users were sent to 06 centres from January to April of 2018.
In country sources in Vietnam report that drug users typically spend 12 months in 06 centres, though some remain for up to four years for post-treatment management. Limited information is available about the living and working conditions in 06 centres, as no external monitoring is permitted by authorities. In-country sources report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory detention of drug users is frequently ineffective, forced labour is used as a form of ‘treatment’, post-release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare. In addition to the 06 centre, treatment is also provided through community or home-based programs, including methadone clinics for heroin users in some district and communes, which require co-payment by the user.”
At the Tribunal hearing, the Tribunal discussed the most recent DFAT Country Report on Vietnam dated 11 January 2022 and noted the following (commencing at 2.22):
Heroin addicts may be diverted to methadone programs run by health professionals. These programs have been running since 2008 and have been scaled up in recent years. The number of people in 06 centres has reduced as the availability of methadone programs has increased. Methadone treatment is not free, but the costs are heavily subsidised by the Government. Services may be available to patients outside of clinics, with methadone provided for use in the home.”
It was submitted at the Tribunal hearing that the applicant would be placed into the 06 centre upon his return to Vietnam. It was suggested that this would occur because the applicant had fled Vietnam. When the Tribunal asked whether there was an evidential basis for that submission, it was submitted that ‘reports’ suggested that this was the case. The Tribunal considered the material provided by the applicant in support of his protection claims but could find no evidentiary basis for that submission. Indeed, the 11 January 2022 DFAT reports only goes as far as to state that drugs users ‘might’ be required to register with the police and may be detained at the 06 centres. At the Tribunal hearing, the applicant told the Tribunal that he had been on the methadone programme for over 20 years and that his current dose is currently 100ml. It was higher before he went to prison. Given the applicant is currently on the methadone programme, the Tribunal is satisfied that upon his return to Vietnam, the applicant would engage in one of the methadone programmes offered in Vietnam. Nothing has been presented to the Tribunal to suggest that the applicant would not be able to access the methadone programme in Vietnam. While the Tribunal is prepared to accept that the applicant was previously known by the Vietnamese authorities as he has previously been imprisoned, and that he escaped Vietnam successfully ‘illegally’ in about 1985, the Tribunal does not accept that the applicant would be a person of interest to the Vietnamese authorities and liable to being required to register with the local authorities as a drug user or subject to any adverse action by the Vietnamese authorities as a ‘failed asylum seeker/person who departed Vietnam illegally given the time that has passed since he was in Vietnam and the fact that the recent DFAT report details the fact that DFAT is not aware of any cases where the provisions of the Vietnamese Penal Code have been used against failed asylum seekers who have returned from Australia (at 5.29).
It was also submitted at the Tribunal hearing that in the event that the applicant was not detailed in a 06 centre, he would suffer harm due to the inadequacy of health resources in Vietnam to address the applicant’s health conditions. While it can be argued in a global sense that any person who is not treated for their medical conditions is consequently harmed by the failure to receive treatment, the applicant was unable to provide the Tribunal with any information to suggest that any treatment for the applicant’s medical conditions would be deliberately withheld from him.
The Tribunal has considered the 11 January 2022 DFAT Country Information Report on Vietnam concerning its health system and mental health treatment. That report details the following (from 2.13):
“Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnosis and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill-equipped. Distance for people living in remote areas can be barriers to access. Health centre are usually staffed by nurses and midwives, whole some have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese.
The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidized, while others pay premiums. Healthcare is not free, a co-payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment.
Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and Ho Chi Minh City. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.
The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
Costs may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed to be available at the district level, but DFAT understands this is not always the case in practice.”
While the Vietnamese health and mental health system may not be comparable to Australia, the DFAT reports suggests that there is an adequate health and mental health system. The applicant did not claim that he would not be able to access whatever services were available in Vietnam to treat his various medical conditions, but rather suggested that the lack of available services meant that he faced risk of harm in Vietnam. The Tribunal does not accept the applicant’s characterisation of the Vietnamese health and mental health system. The Tribunal is satisfied that adequate supports are available to the applicant in Vietnam.
It was also suggested at the Tribunal hearing that the applicant is a suicide risk upon his return to Vietnam. Thoughts of suicide are clearly a mental health condition. Based on the DFAT report above, the Tribunal is satisfied that there is a reasonable mental health system in Vietnam which the applicant would be able to access to assist him to address those thoughts.
At the Tribunal hearing, the applicant said that he was not sure about what would happen to him if he returned to Vietnam, but said he was concerned that because he was physically unable to work, and there was no pension available for him in Vietnam, that he had no home, and would not fit in Vietnam because he had been away from there for a long period of time.
Noting the applicant’s age, criminal history, and health concerns, the Tribunal is satisfied that he would not be able to undertake employment in Vietnam upon his return. However, as made clear in the DFAT 11 January 2022 Country Report on Vietnam, Vietnam does have a social welfare benefit. The report details that (at 2.8):
“The poor are eligible for a social welfare benefit from 60 years of age with age and greater coverage and benefits for those over 80. The payment is usually not high enough to subsist on without other assistance. A compulsory insurance scheme (pension scheme) covers about 20 to 25 per cent of the population, mostly workers in the formal sector…. Particular groups among the poor, such as the elderly or ethnic minorities, without other means of support, may receive official payments or loans to assist with daily living expenses or practical assistance such as food, healthcare or vocational training.
Social welfare eligibility is very complex and eligibility in particular circumstances is difficult to determine. Access to programs for any given individual should not be assumed. Fraudulent access to schemes is also reported by in-country sources. Even if an applicant is entitled to social welfare, the amount they would receive would be unlikely to sustain them without other means of support.”
Having considered what the applicant claimed at the Tribunal hearing against the relevant country information, the Tribunal concludes that the Tribunal would be able to access the social welfare benefit detailed in the DFAT report, given all his circumstances as discussed above. Nothing has been provided to the Tribunal to demonstrate that the applicant would be denied access to that pension. The Tribunal notes that the applicant also has Australian children who attended the Tribunal hearing. The Tribunal is satisfied that they would also subsist the applicant to meet his living expenses in Vietnam, including assisting him to secure accommodation in Vietnam. The Tribunal is satisfied that the applicant will be able to subsist in Vietnam upon his return.
Concerning the applicant’s claim that he would not ‘fit in’ in Vietnam given he had been away for so long, the Tribunal accepts that it may be hard for the applicant to readjust to Vietnam after being away from that country for such a long time. However, a feeling of ‘not fitting in’ based on the fact that the applicant has been away so long does not equate to harm, let alone serious or significant harm. There is no evidence that the applicant would be treated differently, so as to enliven protection obligations, based on the fact that he would be a person who returned to Vietnam after a significant time abroad.
The claims discussed at the Tribunal hearing were consistent with what was put in the applicant’s application for review form received by the Tribunal on 5 July 2021. The Tribunal notes that the form completed was that used in the General Division of the Tribunal, rather than the form used for reviews in the Migration and Refugee Division. In the General Division form, the applicant was asked why he claimed the decision by the delegate was wrong. The applicant wrote “the decision in my view neglected both the current health service deficiencies in Vietnam and their likely effect on me, the applicant, if I were returned three, coupled with the circumstances of myself and family in Adelaide.’
The Tribunal notes that in the various materials provided in the course of the review application, there were various ‘reasons’ submitted about why the applicant should remain in Australia, such as:
‘(The applicant’s) children are at the centre of his life and in this regard, deportation would represent such a cruel punishment, both to him (the applicant) and to them’ (submission 25 April 2021). The Tribunal is not aware, and nor did the applicant provide to the Tribunal, any authority for the proposition that this enlivened protection obligations.
‘It is doubtful that the applicant cannot be described as anything other than ‘stateless’ on the basis that ‘after a person where the applicant ‘lived on the streets and when the communist authorities cancelled any documents of identity he possessed.’ It was argued that the applicant was ‘never a citizen of the Socialist Republic of Vietnam and does not hold any document referring to such status’ and suggested that the Socialist Republic of Vietnam would be ‘unlikely’ to welcome the applicant’s return or accept that he has a right to return to Vietnam’ (submission 4 September 2021). The Tribunal is not aware, and nor did the applicant provide to the Tribunal, any corroborative evidence by way of independent reports that Vietnam would refuse to acknowledge someone in the applicant’s position of a right to return to Vietnam or would refuse to issue the applicant with the relevant identity documents to demonstrate his Vietnamese citizenship. The Tribunal is satisfied in the absence of the pursuit of this claim at the Tribunal hearing, and the fact that no corroborative evidence was produced by way of independent report to support the applicant’s proposition, that the applicant is a citizen of Vietnam and that this country is the country of reference for the purpose of the protection visa assessment.
‘On an emotional level, further, three law-abiding upstanding members of Australian society would be robbed of a close relationship with their devoted father and father-in-law through no fault of their own’ (submission 4 September 2021). The Tribunal is not aware, and nor did the applicant provide to the Tribunal, any authority to support the proposition that ‘robbing law-abiding members of Australian society of a close relationship with a devoted father and father-in-law’ would enliven Australia’s protection obligations. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[1]
[1] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
‘(The applicant) has no trusted family members to support him if he were to return to Vietnam’ (submission 4 September 2021) but did not address how having no ‘trusted family members to support him if he were to return to Vietnam’ was in and of itself a basis for the applicant being owed protection obligations. If the applicant’s claims were that the absence of ‘trusted family members in Vietnam’ was suggesting that he had no capacity to subsist in Vietnam, the Tribunal is not persuaded by that argument. As detailed in the DFAT report, there is social welfare in Vietnam and there is no persuasive evidence that the applicant would not be able to secure housing, food or other supports that would be available to anyone else in Vietnam.
To the extent that the DFAT report may suggest that further ‘assistance’ may be required by a person in the applicant’s situation to meet living expenses, the applicant has two sons in Australia who, on the basis of their written statement dated 30 August 2021 that his two sons provided to the Tribunal indicated their willingness to ‘provide their full support including covering any financial cost of psychiatric and rehabilitation treatment, support programmes within the community, alongside any other healthcare costs and permanent accommodation at one of our homes with us.’ While the Tribunal accepts that that willingness was predicated on the applicant remaining in Australia, the Tribunal is not satisfied that the support of his two sons would cease and not be redirected to the applicant’s circumstances in Vietnam.
‘Deportation (of the applicant) would be unconscionable and not in Australia’s interests’ (submission dated 6 October 2021) but did not address how ‘unconscionability’ or ‘Australia’s interests’ related to s 36(2)(a), (aa) or (b).
To the extent that any claims or potential claims are suggested as arising from the submissions provided by the applicant, the Tribunal rejects those claims on the basis that they were not raised at the Tribunal hearing where the applicant squarely put to the Tribunal that his claims arose from the suggested detention in a 06 facility, and in the alternative, that he would not be able to receive adequate healthcare for his myriad health problems in Vietnam.
The Tribunal also notes that submissions were directed to undermining the delegate’s reasoning, a suggestion that the delegate had denied the applicant ‘procedural fairness’. Such submissions should not be made in a merits review application. It is irrelevant to the Tribunal’s task. The Tribunal is only concerned about whether the applicant meets the statutory criteria for the protection visa.
The Tribunal also notes that submissions were directed to undermining ‘country information’ relied upon by the delegate to reach conclusions. In the present review application, the Tribunal has considered the relevant DFAT country information reports. To the extent that any submission or document provided by the applicant has been directed to undermining the facts that may have been relied upon by which DFAT reached its assessments, the Tribunal prefers the assessments made in the relevant DFAT reports. The Tribunal accepts the assessments made in the DFAT report are reasonable conclusions reached after considering all available evidence. The Tribunal will not depart from the assessments contained in the DFAT reports for this reason.
In terms of suggested relevant considerations, the Tribunal notes that it was directed in both oral and written submissions to several cases, including Hands v MIBP [2018] FCAFC and GBV18 v Minister for Home Affairs, [2020] FCAFC 17. Those cases dealt with mandatory cancellation of absorbed person visa under s 501(3A) of the Migration Act 1958 (Cth) and a request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth). Those cases are not concerned with the application of the protection obligations under s 36(2)(a) or (aa) or (b) of the Act.

The applicant did refer the Tribunal to NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, which the Tribunal understands to be judicial review of a decision by a delegate to refuse to grant a protection visa, but on the basis that the applicant did not pass ‘the character test.’ The considerations in such a case are different to those being considered by the Tribunal, which is only concerned with the applicant meets either s 36(2)(a), (aa) or (b). Providing cases that are not on point is entirely unhelpful to the applicant.
APPLICATION OF THE STATUTORY CRITERIA TO THE FACTS AS FOUND BY THE TRIBUNAL
Based on the above the Tribunal makes the following factual findings relevant to the applicant’s protection claims.
The Tribunal is satisfied that the applicant is a drug addict who is currently on the methadone programme.
He also has other heath problems as detailed in the reports of [Mr I] dated 5 September 2021, including suicide risk, memory deficit, executive functioning deficits, resulting everyday functioning deficits. That report also included a mental health treatment plan which detailed past health conditions, including but not limited to Hepatitis, as well as the report of [Mr I] dated 8 June 2021 where he was diagnosed with major depressive disorder, substance abuse disorder, panic disorder, agoraphobia, social anxiety disorder, generalised anxiety disorder, mixed (antisocial and borderline) personality disorder, bipolar disorder and posttraumatic stress disorder. The [Mr I] reports build upon the findings of the reports of [Dr J] dated 4 September 2019, and the psychological report of [Dr K] dated 9 November 2020.
The Tribunal is not satisfied that upon his return to Vietnam, the applicant would be placed into a 06-detention centre. There is no need to detail the material provided by the applicant which seeks to address the conditions provided by such a facility.
The applicant would be able to access the Vietnamese health and mental health system to seek assistance with his various drug and health problems and that while the health system (broadly described) may not be the same as that offered in Australia, it is a reasonable health system and there is no corroborative evidence that the applicant would be denied any available treatment. To that end, any deficiencies in the Vietnamese health system would be faced by the general population in Vietnam.
In the event that the applicant did not access the health and mental health system available in Vietnam, which resulted in the applicant committing suicide, having poor health, or dying from his health conditions for lack of treatment, those possible results do not constitute a real risk of significant harm to the applicant because that is not an arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[2] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[3]
[2] The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].
[3] SZDCD v MIBP [2019] FCA 326 where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s 36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s 36(2A)(a): at [47].
The applicant’s treatment of his drug addition and other health concerns in Vietnam (as the Tribunal has found them), or in the event that the applicant does not access those services, does not constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment because there is no evidence by way of documentary evidence or report that the Vietnamese authorities will deliberately withhold treatment or intend to cause the applicant harm.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that that there is a real chance of serious harm to the applicant in Vietnam due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2022] AATA 2514

6 June 2022

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