2115852 (Refugee)

2115852 (Refugee) [2022] AATA 4927 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Nguyet Thi Doan (MARN: 1795946)
CASE NUMBER:  2115852
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:7 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2022 at 4:03pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – Covid-19 – prolonged absence from Vietnam – inability to access mental health intervention and assistance in Vietnam – failed asylum seekers – applicant returned to Vietnam on multiple occasions – remained in Australia unlawfully for more than 7 years – applicant has lodged his protection visa application for the sole purpose of remaining in Australia – decision under review affirmed

LEGISLATION
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 for Home Affairs on 25 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 10 August 2021. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A], the applicant’s aunt, [Ms B], the applicant’s cousin, [Ms C], and the applicant’s aunt, [Ms D]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the Tribunal hearing.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether 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 that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Claims and evidence
Protection Visa Application
The applicant applied to the Department for protection on 10 August 2021.
In his application for protection the applicant stated that he was born on [date] in [Ward 1], Tra Vinh, Vietnam. He claimed to be in a de facto relationship since 1 June 2020. He stated that his de facto partner, [Ms A], was born in Vietnam on [date] and was an Australian citizen. He claimed that his parents, one sister and four brothers were all living in Vietnam and stated that he called his parents almost every day and would call his siblings on average once a week. He claimed that in Vietnam he had lived in Vinh Long from January 2000 to January 2004 and had then lived in [a] District, Ho Chi Minh City from January 2004 to 19 September 2008. He also listed various addresses where he had been residing from time to time in Australia since [September] 2008. He stated that he was of Vietnamese ethnicity and Buddhist religion.
The applicant stated that he had arrived in Australia on [date] September 2008 on a valid Vietnamese passport as the bearer of a valid Australian student visa. He stated that since first arriving in Australia he had travelled to [Country 1] on one occasion in 2010 and had returned to visit family in Vietnam on 4 separate occasions with the last visit being in February 2013.
The applicant claimed that had completed his schooling in Vietnam and had completed a [degree] at [a] University from 2001 to 2004 in Vinh Long, Vietnam. He claimed that he was then employed as a [occupation] in Ho Chi Minh City from January 2004 to September 2008.
The applicant claimed that in Australia he had completed an ELICOS and Bridging Course at [University 1] from October 2009 to June 2010, and then studied [another] course at the same university from July 2010 until he withdrew in April 2013. He stated that in Australia he was currently unemployed he had been employed as casual farm hand from September 2008 to May 2013 and as a kitchenhand in a restaurant from June 2013 to 29 June 2014. He claimed that since 30 June 2014 he had been unemployed and would help his aunts and their husbands to clean, repair and maintain their homes. He stated that since that time he had survived on cash loans from relatives, personal savings, loans from friends, as well as donations of cash, food and clothing from his de facto partner.
The applicant claimed that he was seeking protection in Australia because he could not return to Vietnam. He stated that he had left Vietnam to study in Australia and claimed that he has not experienced any harm in the past in Vietnam.
The applicant claimed that on return to Vietnam he would face detention and questioning at the airport. He claimed that because he had been out of the country for several years without lawful excuse, he would be liable to arbitrary detention and ill treatment which can be indefinite because of the lack of due process.
The applicant claimed that another explanation of why he could not return to Vietnam was because Covid-19 appears everywhere and that in Vietnam Covid cases were booming. He claimed that he would be at risk of contracting Covid-19 if he was put into overcrowded detention facilities or prison in Vietnam. He claimed he would fall victim to people smugglers, gangs and corrupt Vietnamese officials upon his return to Vietnam. The applicant stated that many people were struggling financially because of Covid so corruption was rife as many people tried to survive.
The applicant stated that Australia was safer. He did not want to go back to Vietnam because he had lived in Australia for a long time, so he was used to life here as well as the culture, weather and civilised way of life in Australia.
The applicant claimed that he feared harm if he returned to Vietnam as he would risk detention, interrogation and torture by Vietnamese authorities due to his prolonged absence from Vietnam without lawful excuse. He claimed that the authorities would not protect him because he had not been loyal to Vietnam, as evidenced by his prolonged absence from Vietnam. He claimed that he could not relocate to another part of the country to avoid the harm he feared because relocation would not stop or minimise the risk of persecution without lawful excuse.
The applicant indicated in his application form that he had overstayed in Australia without a valid visa since his last substantive and bridging visa expired in approximately June 2014.
Together with his application, the applicant provided a copy of his birth certificate, a copy of the biodata page of his Vietnamese passport and a copy of his Western Australian driver’s licence.
Also submitted with the application form was a letter dated 10 August 2021 from the applicant’s representative. The representative stated that given the applicant’s unlawful status, the representative had been instructed to lodge the application immediately.
The representative also stated that in deference to her obligations under the MARA Code of Conduct, she had advised the applicant that his protection visa application had limited prospects of success, however, notwithstanding the representative’s advice and discouragement, the applicant had nonetheless instructed her in writing to lodge the application. The representative added that the applicant believed he had claims to complementary protection as well as claims under the Refugee Convention because he had been absent from Vietnam for an extended period of time without lawful excuse and that makes him liable to detention with the risk of exposure to Covid 19 if sent to a crowded prison or forced detention facilities if he returned to Vietnam. The representative stated that this would also expose him to criminal gangs, people smugglers and corrupt Vietnamese officials who would attempt to extract money from him. The representative added that the applicant also seeks to access ministerial intervention if necessary.
The delegate refused to grant the applicant a protection visa on 25 October 2021.
Application for Review
The applicant lodged an application for review with the Tribunal on 4 November 2021. The applicant also provided the Tribunal with a copy of the delegate’s decision record and the accompanying notification of refusal letter from the Department.
On 23 June 2022 the Tribunal wrote to the applicant inviting him to attend a hearing scheduled on 29 July 2022 to give evidence and present arguments relating to issues arising in his case.
By email dated 27 June 2022, the applicant’s representative requested access to written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review pursuant to s362A of the Act.
In response, by email dated 28 June 2022, the Tribunal informed the representative that an application for review of a Protection Visa under Part 7 of the Act is not subject to s362A. The Tribunal invited the representative to make an application under the Freedom of Information Act 1982 if they wished to do so.
By email dated 28 June 2022, the representative informed the tribunal that she had made an FOI request on 18 November 2021 but had yet to be provided with any documents. In response, also by email dated 28 June 2022, the Tribunal informed the representative that Tribunal records indicated that they had not received any FOI request in relation to this matter. It was pointed out if the representative had made an FOI request to the Department, this request would be processed independently by the Department and the Tribunal could not assist with any such requests.
By email dated 20 July 2022 the applicant’s representative indicated that the applicant would attend the scheduled hearing on 29 July 2022 but flagged with the Tribunal that she may request an adjournment of the hearing as she had not yet received a response to her FOI request from the Department. The representative also indicated that in applying for a variation for the applicant’s bridging visa for permission to work, she had received medical evidence to the effect that both the applicant and his partner were suffering from significant mental health issues and furthermore that the applicant had sustained a head injury which required further investigation and assessment by a neurologist. The representative stated that these medical and psychological issues may reinforce claims for complementary protection and the applicant would like the opportunity to present forensic reports to the Tribunal.
By email dated 21 July 2022, the applicant’s representative stated that the applicant wished to have two additional witnesses give evidence on his behalf at the hearing, being his aunt [Ms D] and his cousin [Ms C]. The representative indicated that these witnesses would provide evidence regarding the applicant’s mental health issues including chronic depression, emotional upheaval from his failed relationships and also the head injury he sustained in 2020. She also indicated that she would provide a report from a psychologist and stated that she had yet to receive a response to her FOI request from the Department.
In a statement dated 21 July 2022 and signed by the applicant, he confirmed his date of birth and his Vietnamese nationality. The applicant stated that he had been away from Vietnam for too long and was too afraid of going back to Vietnam. He claimed he had lost the right of a household registration in Vietnam and it was impossible to regain household registration. He claimed he needed to provide reasonable evidence for why he had been away from Vietnam and the evidence must be nothing relating to anti-communism. He stated that the issue was that if he could not provide evidence that he had been away from Vietnam lawfully, he would be charged with a criminal offence and go to jail for at least three years. The applicant stated that if he was unable to get household registration, he would be unable to apply for any other documents such as an identity card, Vietnamese passport, drivers’ licence, and school enrolment.
The applicant confirmed that his parents were currently retired and living in Vietnam with his younger brother who was single. His father had two sisters who currently live in Australia and they often send money to his parents in Vietnam. He stated that his father also had a brother in [Country 2] who also sends money to Vietnam for his father. He claimed that he also had siblings in Vietnam who provide some living expenses for his parents.
The applicant stated that he came to Australia on a visitor visa in 2006 for three months. In 2008, he came back to Australia on a student [visa]. He claimed that he studied ELICOS for approximately two years and then changed his course [at] [University 1] where he studied for one and ½ years before stopping his studies altogether.
The applicant stated that he met [Ms E] at his aunt’s house in 2006 when he first came to Australia on a visitor visa, and they stayed in touch. When he returned in 2008, [Ms E] was still living at his aunt’s house, and they entered into a committed relationship. He stated that he and [Ms E] lodged a de facto partner visa application in November 2010, and they continued to live at his aunt’s house whilst he studied on his student visa.
The applicant stated that this relationship did not last and when [Ms E] withdrew the visa application he was devastated. When [Ms E] moved out of his aunt’s house at the end of December 2012, the applicant was very sad, and he withdrew from all social events. His aunt introduced him to a lady named [Ms F] with whom she worked. [Ms F] was also divorced, and they shared some common interests and background, so they got on very well.
The applicant stated that [Ms F] had three children [at] the time. He got married to [Ms F] on [date] April 2013 and they lodged a subclass 820 partner visa application on 2 August 2013. He confirmed that a migration agent helped them to lodge this application.
The applicant stated that in May 2014, a case officer from the Department came to their home to check on them but he was not at home at the time. [Ms F] told the case officer that they had been in a fight and the applicant had left for a few days. He claimed that he was staying his aunt’s house. The applicant stated that after visiting the house and talking to [Ms F], the case officer did not think that they were in a genuine relationship and therefore refused their partner visa application. He stated that a letter had been sent to him and he was required to lodge an appeal with the Migration Review Tribunal by 6 June 2014. He claimed that he approached a migration agent and was told about the fees required to lodge the appeal and also the agent’s fees. He then returned to [Ms F] and asked her to reconcile the relationship so they could lodge an appeal to prove their relationship was genuine. He claimed that he was very sad and stressed about his relationship and also did not have the money so he wanted [Ms F] to sit down and talk to him so hopefully they could be happy again. He did not have the money to lodge an appeal and tried to borrow money from friends and relatives, but [Ms F] told him she did not want to continue with the relationship or to lodge an appeal. He was again heartbroken and very depressed. He felt that he was a failure in all parts of his life including his love life, career and studies. He felt that he had not achieved anything in life, and he cried himself to sleep all the time. He did not study at the time and he did not have any work rights, so he stayed in his room and did not want to see anybody. His friends felt sorry for him so they invited him to their place to drink on some weekends so that he could feel better.

The applicant stated that in 2016 he moved to live with another of his aunts, who needed some help with her kids. He stayed at her house and helped pick up her two children from school and also did personal chores such as shopping and cooking. Apart from that, he was feeling sad and depressed again from his two heartbroken relationships. He claimed that he stayed at this aunt’s house for five years.
The applicant stated that he had experienced occasional headaches when he was in Vietnam when he started studying his university degree in 2000. He normally had headaches in the morning and went to the local pharmacy to buy medicine. In 2004, after he had completed his university degree, he still encountered the headaches in the morning sometimes. He went to see a doctor and had an x-ray, but the doctor could not find anything. He suspected that the technology was not advanced then and he thought the tropical weather in Vietnam made his condition worse.
The applicant claimed that when he arrived in Perth, his headaches continued but they improved a lot. He took Panamax when he had headaches and felt better but when his relationship with [Ms F] broke down, he felt his headaches had become worse. He claimed that during a Christmas party at a friend’s place in December 2019, he was drinking and felt dizzy and then fell over and hit his head. He felt pain in the head and his face was swollen on one side. He stated that he had pictures of this incident on the night. He went to see a general practitioner, [Dr G], on 21 February 2020. This doctor found a [left] angle mass displacing the brainstem and cerebellum and referred the applicant to see a specialist. The doctor feared that the mass may grow and may push onto the applicant’s brain cells, which may cause more headaches. The applicant asked his cousin, [Ms C], to call the specialist but the specialist told him that the cost of the operation may be high especially if he did not have Medicare and more costs would be incurred for check-ups. The doctor was reluctant to provide the operation because the applicant had no Medicare benefits, and the operation could be risky and could cause other issues to the brain. The applicant stated that every time he went back to the doctor, he lied to the doctor that he was okay. He claimed he was not sure how okay he was, but he could not afford to see a specialist.
The applicant stated that after he became unlawful, he did not ask for any help due to his mental instability. He was very depressed at the time, and he did not want to go anywhere. He did not have the urge to do anything, and he did not want to return to Vietnam as nobody could assist him to find a job. He claimed he did not have the current knowledge about information technology and businesses in Vietnam tended to employ young people as they have more advanced knowledge and training in [the] industry. The applicant stated that he was currently [age] years old and was less likely to compete with younger people for the same [job]. He also claimed that there was a risk of persecution returning to Vietnam as he had a prolonged absence from the country. There were too many fears for him to go back. He was also scared that the mass tissues in his brain would grow which would affect his mental capacity to think straight. He claimed that if an operation occurs in Vietnam, he would not have sufficient money for the operation and did not think he would survive as the medical technology in Vietnam is not advanced. He claimed that most people have their operations outside Vietnam if they have the money as they do not trust the Vietnamese doctors in Vietnam.
The applicant stated that he was very afraid of going back to Vietnam especially given that his wife, [was] pregnant and due to give birth in [2022]. He claimed that his wife’s son [who] had been born on [date] was now his stepson and was also experiencing depression. The applicant stated that he needed to stay in Australia to look after his wife and his son. If he was not here, his wife would have a difficult time taking care of the baby and her teenage son on her own. He was also scared that his wife may become depressed if she had no support around her. He claimed that his wife had her cousins, but they had their own family and were unable to have a lot of time to spend with his family if he was gone.
The applicant stated that he was currently unable to lodge a partner visa due to a sponsorship limitation. He claimed that if the Tribunal did not believe that he was a genuine refugee, he would like to ask the Tribunal to help refer his case to the Minister. He believed that his circumstances were compelling, and he respectfully asked the Tribunal to refer his case to the Minister so that he could lodge a partner visa application with his wife, [so] he could stay in Australia to be with his wife, her son and their new baby that was due [this] year.
The applicant claimed that he delayed his application for protection after he first arrived in Australia because, at the time, he did not know that such a visa existed, until a friend of his told him that someone in the same situation had lodged a protection visa successfully. The applicant stated that he then engaged his current representative and told her about his claims. He claimed that the representative agreed to assist with his matter but also told him that the success rate for a protection visa is limited because he did not have any evidence to prove his claims. He claimed that he also delayed lodging a protection visa application because of his chronic depression which had been ongoing since his failed relationships with his first partner [Ms E], and then again with his ex-wife [Ms F]. He stated that all these emotional disruptions made his headaches worse, and he was afraid that the mass tissues in his brain had got larger and may be pushing onto his brain cells which may have caused the headaches to worsen.
The applicant stated that in his culture a person who gets treated for depression is considered ‘crazy’, so he was reluctant to see a psychologist and it was mainly because he did not have any money and did not think that anyone could help him. However, he no longer thinks that way since he met his current wife. He claimed that they were both experiencing financial hardship and are experiencing a lot of stress. He stated that his wife’s son, [was] experiencing depression during his final year in high school. The applicant claimed that both his aunts had witnessed the failed relationships and how depressed he was when he was living at their homes.
The applicant stated that he could not apply for protection in any other country because he was unable to go to other countries as he was already in Australia. He stated no other country would take him as he was already unlawful.
In relation to complementary protection, the applicant stated that if he was to return to Vietnam he would be at risk of harm because he was an easy target for corruption by the official government as he had been away from Vietnam for several years and they would assume that he would have a lot of money. He claimed that he would be blackmailed by these government officials.
The applicant stated that if he was to be deported back to Vietnam he would be interrogated for his prolonged absences and if he was unable to provide any evidence he would be charged and persecuted for going against the government and would be jailed even if they had no evidence of these claims. He stated that if he was to be detained, he would be ill-treated as the conditions in jail and detention are very bad. He claimed they would make him pay bribes to the guards for better treatment inside. He claimed he would be an easy target for corruption because he had been living in Australia for a very long time and they would think that he had lots of money stashed somewhere. The applicant claimed that during the Covid-19 pandemic everybody was struggling and experiencing financial difficulties. He stated that the government would target him and demand that he bribed them so he could be released. He also claimed that he would easily fall victim of people smugglers because he cannot deal with the interrogation and persecution of the government officials if he was forced to return to Vietnam.
The applicant claimed that he had an acquaintance who had lived in Sydney lawfully for over five years but was returned to Vietnam before the Covid-19 pandemic. The applicant stated that this man was the same age as him and he was struggling to apply for a household registration. He claimed that to this day he was still experiencing difficulties getting household registration and is constantly asked to go for interviews regarding his prolonged absences. The applicant stated that a lack of household registration would prevent him from accessing healthcare. If he was required to have an urgent operation and medical care, he would not be able to have emergency access because he did not have the official documents to the medical officers would not be able to admit him into hospital, which was a significant harm to his livelihood.
In an email dated 25 July 2022 the representative stated that given the applicant’s complicated immigration history she believed that she needed a full set of FOI documents from the Department in preparation for the Tribunal hearing. She claimed that she realised she could have requested these documents a lot earlier, but she believed that the Tribunal hearing would not be convened for another 18 to 24 months, in line with what she claimed was standard practice. The representative added that the applicant had provided further instructions regarding witnesses he wanted to call to the hearing and claimed that the applicant’s depression and head injuries might have affected his cognitive functioning which was a reason that he was not able to deal with issues regarding his application in a timely manner. The representative requested a 4-to-6-week postponement of the scheduled hearing.
On 26 July 2022 the representative provided the Tribunal with a copy of a statement from [Ms C] dated 21 July 2022. In this statement [Ms C] confirmed that she was a [occupation] and claimed that she was the cousin of the applicant. [Ms C] stated that she learned of the applicant’s MRI report when she was asked to help find a neurosurgeon. She claimed that the applicant showed her a referral letter from his general practitioner who had referred the applicant to a neurosurgeon for an urgent review. [Ms C] claimed that she tried to call some neurosurgeons in Perth for quotes of the review and operation. She stated that the quotes were significantly high because the applicant did not have Medicare benefits and could not afford the operation. She stated that the applicant decided not to see the neurosurgeon due to price issues and after that she did not assist the applicant any further with this matter.
In an email dated 27 July 2022, the representative provided the Tribunal with a further copy of the statement from [Ms C], a letter from [Dr G] dated 1 July 2022 and a copy of the medical imaging request form issued by [Dr G] on 3 May 2022. Attached to this request form was a copy of a radiology report [dated] 26 February 2020 highlighting findings of several issues of concern arising from an MRI brain scan conducted on 25 February 2020. The representative also indicated that she was awaiting further psychological reports in relation to the applicant and the applicant’s wife.
In his letter dated 1 July 2022, [Dr G] stated that he had seen the applicant on 21 February 2020 as a first consultation for a head injury that the applicant claimed had occurred on 1 January 2020 and he was still having ongoing dizziness and balance problems. The doctor provided a description of his findings and he advised the applicant to undertake an urgent MRI and neurological review. He claimed that he had referred the applicant to a neurosurgeon for urgent review on 26 February 2020. The doctor stated that the applicant returned to see him on 3 May 2022 for skin problems and had mentioned to him that even though he had been referred to a neurosurgeon in February 2020 he had not made an appointment and he has not been reviewed by a specialist for the brain mass. The doctor stated that the applicant reported to him that he felt fine, and he had no symptoms of increased intracranial pressure such as headaches, dizziness, vomiting or blurred vision. The doctor stated that he then provided the applicant with an MRI request form and advised him to repeat the MRI scan immediately, but he did not do so. The doctor stated that he again reviewed the applicant on 17 June 2022, and he mentioned that he had some symptoms of depression and anxiety for a few months. The doctor stated that the applicant reported to him that he was feeling sad and hopeless, lethargic and had lost interest in many of the things he used to enjoy. He also reported trouble sleeping and suffered a loss of appetite. The doctor stated that he organised a mental health care plan for the applicant, and he had been referred to a psychologist for psychological treatment and counselling sessions. The doctor stated that this letter had been issued for the purposes of immigration issues and a visa application.
In considering the representative’s request for a postponement of the hearing, the Tribunal placed significant weight on the representative’s statement that she could have made an earlier request for the documents she was seeking from the Department but chose not to do so, instead relying on her own presumption of when the matter may be considered by the Tribunal. Accordingly, the Tribunal did not agree to the representative’s request for a 4-to-6-week postponement. However, on 28 July 2022 the Tribunal did agree to postpone the hearing originally scheduled on 29 July 2022 to allow the applicant to arrange for witnesses to attend the hearing and to allow the representative additional time to make submissions. The hearing was therefore postponed until 11 August 2022.
By further submission on 28 July 2022, the applicant’s representative provided the Tribunal with witness statements from the applicant’s wife [Ms A] and the applicant’s [aunt].
In her statement dated 27 July 2022, [applicant’s aunt] stated that the applicant was her nephew and he had moved in to live with her in 2016 after he had separated from [Ms F]. She believed the couple were now divorced. The aunt stated that she knew the applicant had a few relationship breakdowns and he had been very distressed and depressed. She had asked the applicant to come and live with her in 2016 to spend more time with him and talk about his emotional tension. She stated that her daughters and she felt unsafe to live by themselves at home as she was a single mother with two teenage daughters. She tried to talk to the applicant about his relationships and she could see that he was very depressed at the time. She encouraged him to see a doctor but he was very upset and sad, so he did not do so. She knew exactly how we felt because she had also had two failed relationships, but she stayed strong in order to care for her children. She claimed that it was harder to cope when there were no children involved and there was no motivation for the applicant to be strong. She claimed that she understood why the applicant withdrew from society altogether for a long time. She claimed that he was also very embarrassed that he did not complete his studies because his family had high expectations of him, as he was the only one who had the opportunity to study abroad in Australia.
The aunt stated that the applicant was very sad and seldom talked to anyone including his aunts and cousins. It was only when he met his current wife that he began to be more open. She claimed that the relationship began in June 2021 and they got married in October 2021. She stated that the wife became pregnant in December 2021 and was due to give birth in [2022].
The aunt stated that if the Tribunal’s decision went against the applicant he may be returned to Vietnam where he would be interrogated because he had been away for a very long time and he would need to explain his absences. The aunt stated that the applicant would be an easy target for the Vietnamese officials for bribery because during the Covid-19 pandemic everybody was desperate to make money. She claimed that if the applicant was unable to pay for the bribery it would be very hard for him to be released. She also stated he would need to reapply for household registration as this is the basic official document to apply for other official documents such as passports and identification cards. She claimed that the local officials would ask him to pay a large bribe in order to obtain this document and she knew that the applicant would have lots of problems with paying a bribe because he does not have work rights and has financial hardship. She claimed that the applicant already owed money to herself and a few others in the extended family in Australia. It would be very difficult for them to keep lending money to the applicant and his wife as they are all experiencing financial difficulties during the pandemic.
The aunt claimed that she was well known to the Vietnamese government and knew how corrupt they could be. She claimed that her family, including her father, brothers and brothers-in-law, were part of the Republic of Vietnam military forces who belong to the South Vietnamese government prior to the fall of Saigon. She claimed that her family was discriminated against by the Communist Party and had been denied basic services. She claimed these were the reasons why she had fled Vietnam in 1989 and arrived in Australia on a refugee visa in 1993. She claimed that she had experienced significant hardship and harm before she left Vietnam and the Vietnamese government did not protect her when she experienced that harm so she risked her own life, fled the country on a small boat and applied for protection in Australia. She was grateful that the Australian government had accepted her claims and she became an Australian citizen in 1996. She asked the Tribunal to decide in favour of the applicant as she knew he would face significant harm if he returned to Vietnam.
The applicant’s wife, [Ms A], provided a statement dated 26 July 2022 which was originally written in Vietnamese and translated by a professional interpreter/translator. In this statement, the wife stated that she knew the applicant had been suffering from depression for a long time. The applicant had told her he had been in Australia illegally for years, and in 2021 he started to apply for a refugee visa. The wife stated that she learnt that the applicant had come to Australia for a three-month holiday in 2006 and then returned to Vietnam before coming to Australia in 2008 to [study]. The applicant had told her that he had been in a relationship with [Ms E], and they had applied for a spouse visa but the relationship had ended. He had then married a person named [Ms F], but the relationship had broken up.
The wife stated that she and the applicant got to know each other in 2019. In 2020, the applicant went with a friend to visit her brother’s farm and they met again. The applicant asked the friend to match him up with her and from there they started to get to know each other until June 2021 when they fell in love. They married in October 2021. She claimed that she was currently pregnant and would give birth in [month], so she needed the applicant by her side. She claimed that she lived with her son, [and] really needed her husband to stay with her to take care of her and her son during this difficult time. She added that after the birth she would have more difficulties.
The wife stated that she was currently depressed and was very afraid if the applicant had to return to Vietnam because he would be arrested as he had been away for too long. She claimed that if something happened to the applicant her child would be born without a father and asked what would happen to her and her child in those circumstances. The wife stated that she is currently unable to apply as a couple because the applicant had already applied for a refugee visa. She claimed that if the Tribunal refused to accept her husband’s refugee visa application, she then begged the Tribunal to ask the Minister to allow them to apply for a subclass 820 spouse Visa onshore.

In an email on 29 July 2022, the representative provided the Tribunal with a copy of an article titled ‘An asylum seekers access to Medicare and associated health services while awaiting determination of a Protection Visa application in Australia’. The representative submitted that this article outlines the particular difficulties faced by asylum seekers in accessing medical care and treatment when they do not have work rights. She added that with work rights there was access to Medicare however without it there was limited access to care. The representative stated that the applicant’s current bridging visa did not have work rights and he could not access Medicare, however there was currently a pending application with the department for unlimited work rights. The representative added that she had been informed that a decision on this application would not be made until 18 August 2022.
On 3 August 2022, the applicant’s representative provided the Tribunal with a statement from the applicant’s aunt, [Ms D]. This aunt confirmed that the applicant had stayed at her home when he visited Australia in 2006 and met [a Country 1] person called [Ms E] who had been sharing a room at her house. When the applicant returned to Australia to study in 2008, he again met up with [Ms E] and they fell in love. She stated that in 2010 the two of them applied for a partner visa and lived together until 2012 when they broke up and [Ms E] moved out. The aunt claimed that the applicant then returned to live in her house for a few days and he was very sad so she introduced him to a work colleague named [Ms F]. After they got to know each other they fell in love and the couple registered their marriage in 2013. They then moved in together for a while but then broke up. After the breakup and quarrel, the applicant again moved into the aunt’s house for a few days. At that time, the aunt saw that the applicant often had headaches, dizziness and sadness and didn’t want to see anyone. The aunt claimed that she now knew that the applicant was applying for a refugee visa which had been refused and was now being heard by the Tribunal. She begged that the applicant be approved to stay in Australia with a refugee visa because if he is not approved he would have to return to Vietnam and would face many difficulties and a very difficult life. She claimed that the reason was the applicant had been away for too long so that his household registration had been deleted. She stated that in Vietnam, household registration was very important and if you don’t have household registration you can’t access other documents and you can’t go to work. She claimed that in Vietnam, if you want to redo the documents it costs a lot of money, but it’s been a long time that the applicant has not been allowed to work so he does not have money to pay the Vietnamese government.
The aunt claimed that in the past because she didn’t have a household registration certificate and couldn’t work, she could not live in Vietnam, so she went across the border and came to Australia as a refugee in 1987. She claimed that in the past her family in Vietnam had been puppet soldiers, meaning people who followed American soldiers. She claimed that she had a brother-in-law who was killed by the Vietnamese police after the war when the Communists took over the country. At the time she stated that it was difficult for families who followed the Republic of Vietnam like her family had done because they were not free and were not protected by the Vietnamese government. She claimed that they could not do anything, everything was not prioritised and until now in Vietnam there was still hatred for people whose families followed the Republic of Vietnam. She requested that the Tribunal open its heart of humanity to help her nephew. She claimed that the applicant’s wife is currently pregnant and would give birth in [month]. She claimed that if the applicant was denied a refugee visa, his wife would be very sad and miserable, and his child would be born without a father because they do not know when they would meet again. The aunt claimed that the applicant was suffering from headaches and dizziness and if he returned to Vietnam, he would not be able to live because he does not have money to treat the illness. She claimed in Vietnam when you go to hospital if you have money then you’ll be treated while in Australia they save people first and then pay later. She requested that the Tribunal have mercy on the applicant’s wife and soon to be born child and the applicant’s illness.
In an email dated 5 August 2022, the applicant’s representative provided the Tribunal with a letter dated 4 August 2022 from Dr [H], Registered Psychologist. In this letter, [Dr H] stated that he had seen both the applicant and his wife on 25 July 2022, and again seen the applicant on 1 August 2022. [Dr H] stated that the couple’s main concerns at present were with the outcome of the applicant’s visa application. He claimed that they appear to hold a very bleak view of themselves and their future. He stated that their self-esteem had nosedived and provided evidence of high scores in various tests he had conducted on the couple. [Dr H] stated that the uncertainty of the applicant’s migration status had cast a dark shadow on the couple’s attempt to build their family. He claimed that the applicant had been overwhelmed by worries, become withdrawn and lost all his interest. He also stated that the applicant’s memory and concentration had also been adversely affected, he had experienced insomnia and lost his appetite, and in particular, he had been in a state of nervous tension. [Dr H] stated that if the applicant was deported from Australia, he feels frightened at the thought of facing excruciating interrogation by the Vietnamese police, who may put him in jail for having fled from the country. [Dr H] stated that the applicant feared for his life and safety.
[Dr H] stated that in his professional opinion the couple’s depression, stress and anxiety would be exacerbated if the applicant was forced to leave Australia and ruined the newly established family. He stated that the imminent baby would be fatherless and furthermore, without the applicant, his wife would not be able to cope financially on top of the deprived emotional support with a baby on hand.
In a further email on 5 August 2022, the applicant’s representative provided the Tribunal with a prehearing submission. In this submission, the representative stated that she had not previously represented the applicant in his other migration matters but was aware of his convoluted and complex immigration history.
The representative stated that the applicant initially travelled to Perth to study, and that in Vietnam he had been employed [and] was well educated. She pointed out that the applicant had good career [prospects]. However, the applicant heard that he could improve his career and promotion prospects even more by studying in Australia and experience a better quality of life while studying in Australia. Upon his arrival in Australia, the applicant fell in love and entered into two relationships that both broke down leaving him devastated. The representative stated that the rejection hit the applicant hard and also caused him embarrassment within his family and extended relatives.
The representative stated that having failed in his studies and his relationships, this was a double whammy the applicant’s self-esteem and self-confidence, so his mental health deteriorated, and he drifted with no sense of purpose and plans. It was claimed that the applicant lived a reclusive existence for a long time withdrawing socially and keeping in touch only with his aunt who provided him with financial and emotional support. It was stated that his cousin also lent him money for day-to-day living expenses.
The representative stated that the generosity of others understandably could not continue indefinitely, and the applicant feels a knock to his sense of self-worth because of his reliance on others for monetary support. He does not want to be seen as a freeloader and has lost self-esteem and self-confidence while feeling extremely anxious and depressed.
The representative stated that the applicant applied for a protection visa on 10 August 2021 on the basis of the following claims:
·his extended absence from Vietnam which would draw attention to him on his return to Vietnam by the Vietnamese authorities;
·he would be the target of black moneylenders who would have a perception (albeit wrongly) that he is wealthy because he has spent so much time in Australia;
·he is under significant risk of harm due to his inability to access mental health intervention and assistance in Vietnam;
The representative stated that the applicant delayed in lodging his protection Visa application because he suffered possible cognitive impairment after head injury in approximately February 2020 and stated that copies of medical reports had been provided to the Tribunal. The representative stated that the forensic psychologist report from [Dr H] had also been provided to the Tribunal and claimed that [Dr H] was well known for his contributions to teaching and research in cross-cultural and social psychology.
The representative then outlined Australia’s obligations under the Act on both the refugee criterion and complementary protection grounds. The representative highlighted that the applicant had not been asked to attend an interview by the Department in relation to his protection visa claims.
The representative claimed that the applicant had a well-founded fear of persecution in Vietnam arising from:
·his political opinion because he fears the Vietnamese authorities will harm him because of his political opinion, actual or imputed as being against the government, and/or because he will return as a failed asylum seeker;
·his membership of a particular social group of persons who were targeted for bribes by corrupt government officials because of their perceived wealth and social status within the community and having spent a long time abroad in Australia where Australia is seen as a wealthy highly developed Western democracy;
·his membership of a particular social group of vulnerable persons who are exposed to corrupt demands by local government and provincial government officials;
·his membership of a particular social group of failed asylum seekers in Vietnam;
·his membership of a particular social group of people without ho khau registration in Vietnam.
The representative outlined a summary of s5J(1) of the Act and stated that the applicant does have a genuine fear of being persecuted and that the Tribunal hearing evidence would be presented that he does have the subjective fear of being harmed in the foreseeable future as contemplated in s5J(1)(a) of the Act.
The representative stated that the applicant claimed that if he returned to Vietnam, he would be perceived to be a wealthy returnee given the length of time he has been in Australia and the fact that Australia’s wages and standard of living are among the highest in the world. She claimed that wealthy Vietnamese and wealthy returnees have a membership of a particular social group. She stated that it was submitted that Vietnamese returnees can be imputed with the same membership for the Refugee Convention purposes.
The representative quoted elements of the Guide to Refugee Law in Australia and stated that the applicant had a number of claims that if considered alone would not amount to a real risk of persecution, however, when considered together it becomes clear that the applicant is at real risk of persecution or significant harm.
In relation to complementary protection, the representative submitted that the applicant claimed he satisfied the requirements under s36(2)(aa) because he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruelty, inhumane and degrading treatment or punishment. In particular, the representative stated that the applicant claimed that there was a real risk he would suffer significant harm because:
·health care including mental health would be available to the applicant but there may be some doubt as to whether such care would be available to support the applicant’s stated needs or that it would be similar to that available to the applicant in Australia given the level of healthcare in Vietnam is described on the DFAT report as “basic”;
·the forced separation from his Australian partner and their soon to be born child would seriously impact or exacerbate the applicant’s mental health issues.
The representative outlined that under s417 of the Act, the Minister may substitute a more favourable decision if it is in the public interest to do so. She submitted that having regard to the unusual circumstances in the applicant’s case, she was requesting that the Tribunal give consideration to referring the case to the Minister for intervention under s417 on the basis that this case appears to raise unique or exceptional circumstances.
In a statement signed by the applicant on 10 August 2022, he stated that he was aware of the submissions made on his behalf by his representative on 3 November 2021 and 5 August 2022. He claimed that he had read the submissions and declared that they accurately and completely represented his claims for protection. He added that in the event that the Tribunal affirms the decision not to grant a protection visa, he requested the Tribunal to have regard to his circumstances and the Ministerial Guidelines relating to the Minister’s discretionary power under s417 of the Act, as set out in PAM3 ‘Minister’s guidelines on ministerial power’ and further requested that the Tribunal should consider his case ought to be brought to the Minister’s attention for favourable exercise of discretion.
The applicant stated that his representative would be making post-hearing submissions, and also stated that he was able to speak, read and write English.
Tribunal Hearing
At the Tribunal hearing on 11 August 2022, the applicant confirmed his date and place of birth, and stated that his parents were retired and living in their own home in [Ward 1], Tra Vinh, Vietnam. He stated that his father had previously been a fisherman and his mother had been a housewife. He had one sister and four brothers, however one brother was now deceased. His remaining siblings all live in Vietnam and one of his brothers lives with his parents.
The applicant stated that he had completed university in Vietnam, where he had [studied] for four years. He claimed that his university was located in Vinh Long, which was around 75 km from his family home, and stated that whilst studying he had lived in Vinh Long near the University. The applicant claimed that after his studies he had worked [in] Ho Chi Minh City for around four years. During this time, he was renting a room in Ho Chi Minh City but he would sometimes go back to his home town to visit his parents. The applicant claimed that just before he came to Australia in 2008, he stopped [working] and returned to his hometown so he could prepare the documents to come to Australia.
The applicant confirmed that he had not experienced any problems in Vietnam prior to coming to Australia in 2008. He also confirmed that he had departed Vietnam legally in 2008 and had arrived in Australia on a valid student visa. He claimed that in Australia he first studied an English course and then studied [a course] at [University 1]. The Tribunal asked the applicant when he stopped studying in Australia. In response, at first he stated 2011 and then added that it was in 2013. He claimed that he stopped studying when he got married to his second partner, [Ms F] , because he wanted to work and earn money for his family.
The applicant stated that he had previously applied for partner visas in Australia on two occasions. The first occasion was with a woman called [Ms E] and the second was with [Ms F]. He claimed that he lodged his first partner visa application around November 2010 when he was in a relationship with [Ms E]. He stated that after he made this application, he had been granted a temporary partner visa. He claimed that he was not sure when this visa was granted but it was sometime between 2010 and 2012. He claimed that the Department subsequently asked him to provide details that the relationship was ongoing, but the couple had been separated at the time. He claimed that his relationship with [Ms E] ended sometime around August 2012 and she moved out. He claimed that she later informed the Department by letter in October 2012 that the relationship was over, and she was withdrawing her sponsorship. The applicant claimed that after [Ms E] withdrew her sponsorship, he also withdrew his application on the advice of the Department. He claimed that he did not use a lawyer or migration agent when lodging this application.
The Tribunal asked the applicant what he did after this relationship with [Ms E] had ended. The applicant responded that he studied some more but he was then introduced by his aunt to [Ms F] . He stated that they commenced a relationship and then got married. He added that he was sad after his first relationship had finished so his aunt introduced him to another woman. He confirmed that [Ms F] was an Australian citizen and claimed that they had married in April 2013. He stated that they subsequently lodged an application for a partner visa in August 2013 using a migration agent who was not his current representative.
The Tribunal asked the applicant what happened to this relationship with [Ms F] . He responded that his wife became jealous and caused a lot of arguments, so they separated. He added that his wife believed he was having an affair and she would not accept his assurances that he was not having such an affair. The Tribunal asked the applicant when this relationship ended. He responded that after some conflict he had temporarily moved to his aunt’s house when an officer from the Department came to do a house inspection. He then added the relationship ended in 2016 but claimed that he did not apply for a divorce until November 2021. The applicant stated that this partner visa application with [Ms F] had been rejected by the Department around June 2014.
When asked what he did after this partner visa had been refused, the applicant stated that he was scared so he moved to his aunt’s house. He added that he was too stressed to do anything. He confirmed that he did not have a visa to stay in Australia after this partner visa had been refused and confirmed that he had stayed in Australia unlawfully after that time. He stated that at the time he just wanted to die, his head was very sore, and he couldn’t think well.
The applicant confirmed that he was now married to [Ms A]. He stated that he had known his current wife since 2019. He claimed that they started their relationship on 1 June 2020 but added that they had been dating for a year before they fell in love in 2021. The applicant claimed that he had married his current wife on [date] October 2021. When the Tribunal pointed out to the applicant that in his own evidence earlier at the hearing he had told the Tribunal that he had not been divorced in November 2021 and that Australian law would not permit him to engage in another marriage prior to such divorce, the applicant stated that the couple got married but they did not sign the certificate. He indicated that his wife had a copy of the certificate and she could provide a copy to the Tribunal. He confirmed that his current wife had been born in Vietnam, came to Australia in 2003 and was an Australian citizen.
The Tribunal asked the applicant why he had stayed unlawfully in Australia for over seven years from July 2014 until he applied for protection in August 2021. The applicant responded that after his two relationships failed he felt very stressed, he left his studies, he got depression and suffered from headaches. He claimed that he had no hope and no direction. He added that his current wife provided him with support which was why he started to apply for a visa.

167. On the basis of the findings that the applicant does not have any genuine fear about returning to Vietnam now or in the reasonably foreseeable future and that applicant has lodged his protection visa application for the sole purpose of remaining in Australia, the Tribunal is not satisfied that if the applicant returned to Vietnam now or in the reasonably foreseeable future there is a real chance that he would face any harm for any reason whatsoever.
168. Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
169. 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).

171. The Tribunal has already found that the applicant has lodged his protection visa application for the sole purpose of remaining in Australia and that the applicant would not face harm for any reason whatsoever if he returned to Vietnam. This finding includes any claimed fears of harm from illegal money lenders and corrupt officials, which the applicant’s representative has claimed ought to be considered under s 36(2)(aa).
172. In relation to the applicant’s mental health, the applicant has claimed over time that he has suffered depression, stress and anxiety. The applicant has also provided a report from [Dr H], a psychologist, stating that the main concern of the applicant and his wife appeared to be the outcome of the applicant’s visa status and his fears of being separated from his family. [Dr H] also expressed his professional opinion that the couple’s depression, stress and anxiety would be exacerbated if the applicant was forced to leave Australia. However, [Dr H] did not outline any ongoing treatment plan that the applicant was undertaking for his mental health issues, any medication that the applicant had been prescribed or how any treatment plan or medication would be impacted if the applicant had to return to Vietnam. In addition, [Dr H] did not indicate the nature and extent to which the applicant’s mental health issues may be exacerbated if he returned to Vietnam. The applicant himself has indicated that the only ongoing medication that he is taking is Panamax, an over-the-counter product which has not been prescribed to him but which he chooses to take himself. The Tribunal accepts that the uncertainty of the applicant’s visa status would cause some depression, stress and anxiety for him and his family and the Tribunal further accepts that if the applicant had to return to Vietnam this depression, stress and anxiety may be exacerbated. However, on the evidence before it, the Tribunal does not accept that impact on the applicant’s mental if he was to return to Vietnam would be of the nature and extent that would constitute significant harm as defined in s 36(2A) of the Act.
173. The Tribunal has also considered the applicant’s medical issues relating to abnormalities revealed by an MRI scan on the applicant’s brain undertaken around February 2020, including the evidence provided by general practitioner [Dr G] who indicated that after observing these scans he had provided the applicant with a referral to a neurosurgeon. However, the evidence before the Tribunal, including the applicant’s own evidence at the hearing, is that since he was given this referral around February 2020 he has not seen a neurosurgeon in order to clarify issues surrounding the abnormalities revealed in the initial scan. It has been claimed that the applicant did not see a neurosurgeon because he did not have access to Medicare and that he therefore could not afford the high costs of brain surgery. The Tribunal accepts that the applicant did not have access to Medicare for some time after he was referred to a neurosurgeon, as he was then residing unlawfully in Australia. However, on the applicant’s own evidence at the hearing, he was granted access to Medicare in early 2022 (the date is unclear but the applicant stated that it was either in January, February or March 2022) but he has not sought to see a neurosurgeon since that time. As discussed with the applicant at the hearing, because he has not seen a neurosurgeon, there is no diagnosis or recommendation that surgery is actually required to treat any issue arising from the brain scan or that there are any ongoing medical concerns arising from this brain scan. Also, in his evidence at the hearing, the applicant clearly indicated that he was very reluctant to undertake any surgery on his brain even if such surgery was recommended because he feared that the surgery may be unsuccessful and may impact negatively on his brain. The Tribunal also notes that since the initial MRI scan around February 2020 there is no indication that any abnormality detected by this scan has negatively impacted the applicant.
174. The Tribunal accepts that an MRI scan around February 2020 revealed an abnormality in the applicant’s brain which the applicant’s general practitioner considered of sufficient concern to refer the applicant to a neurosurgeon. However, given that the applicant has not seen a neurosurgeon since that time even after he was granted access to Medicare and given that there is no recommendation or diagnosis that surgery is required or that there are any medical concerns arising from the abnormalities detected in the MRI scan, the Tribunal considers that any suggestions that there are any such ongoing medical concerns or that there is a need for brain surgery are purely speculative. Accordingly, the Tribunal does not accept that there are any ongoing medical concerns arising from this MRI scan, including any concern that the applicant may require brain surgery.
175. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Vietnam. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
176. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Request for Ministerial Intervention

178. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
179. In relation to this request, the Tribunal has read and considered the submissions made on behalf of the applicant arguing that this would be an appropriate matter for the Minister to exercise such discretion.
180. However, given the Tribunal’s findings that the applicant does not have any genuine fear about returning to Vietnam and that the applicant has lodged his protection visa application for the sole purpose of remaining in Australia, the Tribunal has decided not to refer the matter. However, the Tribunal notes that the applicant can make a request directly to the Minister.
decision
181. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
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 4927

7 November 2022

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Immigration

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Statutory Interpretation

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Procedural Fairness

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