2210202 (Refugee)

2210202 (Refugee) [2023] AATA 1703 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER:  2210202
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Rachel Da Costa
DATE:9 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2023 at 11:15am
CATCHWORDS
REFUGEE – protection visa – Vietnam – original protection claim based on father’s refugee status – new complementary protection claim based on terminal illness – lack of access to appropriate health care and medication – extensive criminal record – former drug addict – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 189, 195A, 197AB, 345, 351, 417, 454, 499, 501, 501E, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 12 July 2022 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 27 April 2022. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following details. He was born in [year] in Cam Ranh town, Khanh Hoa state, Vietnam. His father is an Australian citizen who was born in Vietnam and lives in Australia. In Australia, he also has his step-mother and five brothers, all of whom are Australian citizens. His biological mother lives in Vietnam.
Since November 1996, he has lived in Melbourne. He most recently arrived in Australia [in] April 2015. He travelled to Vietnam [in] January 2015 using a Certificate of Identity issued in Australia. He has never held a Vietnamese passport.
He speaks, reads and writes Vietnamese and English. He has never worked.
His current address is the Melbourne Immigration Transit Accommodation, Broadmeadows, Victoria where he is in detention. He has been found guilty and convicted of an offence. In an attachment, he provided details about this which are set out below.
Evidence before the Department
The applicant’s migration history
As set out in the delegate’s decision, the applicant’s migration history is as follows:
·     [November] 1996: applicant arrived in Australia as the holder of a Vietnamese Permanent visa subclass BK 217
·     23 July 2008: cancellation commenced under s 501 of subclass BK 217 visa
·     1 August 2008: visa not cancelled
·     [January] 2015: applicant granted a Resident Return subclass BB 155 visa
·     [January] 2015: applicant departed Australia for Vietnam
·     [April] 2015: applicant returned to Australia
·     5 December 2018: Resident Return subclass BB 155 visa cancelled under s 501
·     2 January 2019: application for revocation of cancellation commenced
·     28 February 2020: applicant detained under s 189(1) of the Act as a result of s 501 cancellation; applicant remains in detention
·     19 May 2020: visa cancellation not revoked
·     21 May 2020: review commenced of revocation outcome in AAT
·     12 August 2020: AAT affirmed Department’s decision not to revoke cancellation
·     26 April 2022: applicant applied for a Protection visa subclass 866
·     2 May 2022: application for Bridging E visa deemed invalid due to s 501E bar
·     26 May 2022: Ministerial intervention request made under s 195A and s 197AB
·     2 June 2022: applicant found not to meet guidelines under s 195A
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     I left Vietnam in 1966 with my dad under subclass 217, my dad was in refugee camp in Indonesia. He left Vietnam for his safety as well-found fear of persecution.
·     Because my dad was a refugee, I came to Australia since I was [a teenager]. I do not know anything about Vietnam, I fear that because of my dad history, I also will be put in danger of persecution.
·     My dad was being harmed by Vietnamese government, he then took a boat to Indonesia and stay in the refugee camp there. After that, my dad was sponsored to Australia. He then brought my stepmother, my siblings and I with him to Australia
·     I did not know anything in Vietnam. I left Vietnam in very young age. My parents are refugee. If I returning to Vietnam, I will be persecuted.
·     They [the authorities] will not protect me because I am a son of a refugee who ran away from Vietnamese government after Vietnam war.
·     I do not have family in Vietnam, I do not contact with my biological mother. Australia is my home country now as I spent almost my whole life here.
The applicant also provided:
·     a copy of his Vietnamese birth certificate and an English translation;
·     a report dated 19 November 2018 from the Australian Criminal Intelligence Commission (ACIC) which lists the applicant’s criminal history including State, Court, Date, Office and Result;
·     a report dated 20 January 2020 from the ACIC which lists the applicant’s criminal history including State, Court, Date, Office and Result.
These ACIC reports indicate that the applicant has an extensive criminal history dating back to 2000, including convictions for heroin possession and trafficking, unlicensed driving, failure to answer bail, theft of motor vehicle, possessing and dealing with property being proceeds of crime, theft, and stalking another person. He has been sentenced to various periods of imprisonment.
On 6 May 2022, the Department wrote to the applicant seeking further information in relation to his protection claims. As set out in the delegate’s decision, the letter explained to the applicant that his statement of claims lacked details about his claims relating to his father and he has not explained why, given more than 15 years has passed since his arrival in Australia, he (the applicant) would be at risk because of his father’s history with the government. The letter put to the applicant that this lack of detail and evidence raised concerns about the genuineness of his protection claims. The applicant was invited to provide further information and documentary evidence about why he would be at risk returning to Vietnam because of his father’s history with the government.
The applicant was also invited to comment on the fact that he had applied for protection more than 15 years after he first arrived in Australia; the fact that he had returned to Vietnam from January 2015 to April 2015 despite claiming that he feared persecution if he returned to Vietnam; and to explain why he would not be able to seek protection from the authorities in Vietnam. The letter invited the applicant to provide comments or information about these matters and, if he is unable to provide more information, to provide a detailed explanation of why.
On 9 May 2022, the applicant’s representative requested an extension of time to respond to the Department’s letter.
On 20 May 2022, the applicant’s representative wrote to the Department explaining that the applicant had been admitted to hospital and they were awaiting further information. A further extension of time to respond to the Department’s letter was requested.
On 8 June 2022, the applicant’s representative wrote to the Department explaining that the applicant had been diagnosed with [cancer] and his health was poor. The representative requested a further extension of time to try to take instructions from the applicant which he explained was difficult because the applicant was having trouble focusing.
Additional claims
On 22 June 2022, the applicant’s representative provided written submissions and a response to the Department’s letter. The submissions explain that the applicant was unable to provide the information sought in the Department’s letter. The submissions go on to state that the applicant has provided further instructions in support of his protection visa application as set out below.
The submissions state that the applicant is suffering from [cancer]. He is attending hospital to undergo chemotherapy and is taking a heavy dosage of painkillers. Since being diagnosed with cancer, he has experienced serious pain. He has lost a significant degree of mobility and is often bedridden. He is unable to engage in work or participate in anything beyond minimal physical activity. He requires daily assistance from a carer to perform basic activities. A carer prepares his meals and helps him to eat and drink, as well as to dress, shower and use the lavatory.
If he is removed from Australia, he will be subject to arbitrary depravation of his life as well as cruel, inhumane, and degrading treatment insofar as he will not have access to the lifesaving treatment he is currently receiving. He holds a genuine fear that he will die if he is removed.
The applicant has no family or friends in Vietnam who he could stay with, or who could look after him. He has no money. He does not think his brother could provide him with adequate financial support, if any. He does not think he could find accommodation in Vietnam. He does not believe he will be able to find work given his condition and does not know how he will be able to find enough money to feed himself or pay for the treatment he requires. He is afraid that he will not be able to access healthcare in Vietnam.
The submissions go on to state that the applicant is not a refugee because he would not suffer persecution by reason of his race, religion, nationality, membership of a social group or political opinion should he be returned to Vietnam. It is submitted that the applicant satisfies the complementary protection criterion because he would suffer significant harm if he were removed from Australia to Vietnam. The submissions ask that the applicant’s claim be assessed against the complementary protection regime.
A large number of the applicant’s medical records were submitted as supporting evidence.
The delegate’s decision
On 12 July 2022, the delegate made their decision. In the decision record, the delegate found that based on the lack of detail in the applicant’s application and the lack of evidence, as well as the applicant’s failure to provide further information, the delegate was not satisfied that the applicant’s claims to fear returning to Vietnam because he is the son of a refugee were credible. The delegate accepted the applicant’s medical diagnosis of [cancer]. The delegate considered the applicant’s claim that he would be unable to access the same level of health care and treatment for his cancer if he returned to Vietnam and that he would not be able to pay for the medical treatment he is dependant on. The delegate found that the applicant’s inability to pay for treatment would not amount to serious harm, and neither would his lack of an adequate support network in Vietnam. The delegate also found that the applicant’s removal from Australia and his inability to access healthcare in Vietnam at the same standard as that available in Australia would not amount to significant harm. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 14 July 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the delegate’s decision with his application for review.
The first hearing
On 28 August 2022, the Tribunal contacted the applicant’s representative to seek information on the applicant’s capacity to participate in a hearing given his medical situation, including whether there were any days or times of day that were unsuitable for the applicant. On 1 September 2022, the applicant’s representative responded that he was attempting to obtain instructions.
On 5 September 2022, the Tribunal listed the matter for hearing via Microsoft Teams videoconference (MS Teams video) on 22 September 2022. Based on the medical evidence before it about the applicant’s vulnerabilities, including his poor health and the ongoing care he required, the Tribunal considered that listing the matter for a video hearing in the first instance was most appropriate and that the hearing mode could be discussed further with the applicant and his representative if necessary.
On 8 September 2022, the Tribunal sent a follow-up email to the applicant’s representative reiterating that the Presiding Member would like to know if the applicant was going to be in a fit state to participate in the scheduled hearing. The email stated that if the applicant was going to be unable to participate in the video hearing then the Tribunal requested information about the applicant’s current circumstances and medical evidence in support by 15 September 2022.
On 15 September 2022, the applicant’s representative informed the Tribunal that the applicant had instructed that he is still in great pain, experiencing fatigue and was not sure how long he could endure at a scheduled hearing. The representative explained that the applicant had instructed that his cancer is incurable and his treatment is now palliative care aimed at managing symptoms and pain.
The representative provided the Tribunal with a copy of the applicant’s most recent hospital discharge summary and oncology notes from [a health service] in Melbourne. The Discharge Summary report dated 2 September 2022 notes that:
·     the applicant was discharged from hospital to a home in [Suburb 1] with immigration services with two full time registered nurses where he will be in community detention;
·     he is on a pain management plan;
·     he is receiving methadone for opiate replacement therapy;
·     he has follow-up care arranged with [palliative] care;
·     he will not be receiving further chemotherapy or radiotherapy.
The report states that the applicant is receiving complex pain management for metastatic cancer of unknown primary and he will not be receiving further chemotherapy. It also provides a list of the applicant’s medications and dosages.
The applicant lives in Melbourne. After the hearing was scheduled, the Victorian Government announced that 22 September 2022 was to be a public holiday. The Tribunal scheduled a new hearing date for 11 October 2022.
On 19 September 2022, a Tribunal officer spoke to the applicant’s representative about the upcoming hearing. The applicant’s representative confirmed that the applicant needed medical assistance two to three times each day for care and medication and that an in-person hearing was not suitable for him. The representative said he would confirm that the applicant had access to the appropriate technology to participate in a video hearing.
The applicant appeared before the Tribunal on 11 October 2022. The applicant appeared by MS Teams video and he was present, along with his representative, in the representative’s office. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal explained to the applicant that the purpose of the hearing that day was for the Tribunal to get a better understanding of his circumstances in Australia and that it would discuss his claims with him about why he says he cannot return to Vietnam on another occasion.
The applicant confirmed that attending the hearing by video was better for him rather than face to face. He explained that he had been brought to his representative’s office by one of his carers and that it was better for him to be there than travelling to the Tribunal premises in the city.
The Tribunal asked the applicant a number of relatively simple questions about his situation to gather information and also to assess his capacity to understand and respond to the Tribunal’s questions. The applicant confirmed that he is not receiving further chemotherapy or radiotherapy, that he is receiving palliative care and he is on a significant pain management program. He gave evidence that he lives in a house in [Suburb 1] with two nurses and one carer. He is never alone. The nurses administer his pain medication four times per day and give him his methadone and the carer helps with cooking, cleaning and taking him to appointments. He gave evidence that the pain medication is effective “about 50%” but when the weather is cold he still feels pain. It also gives him a headache and digestive problems.
The Tribunal asked the applicant whether the medication he was on affected his ability to think clearly and talk to people. He said that it makes him feel tired and not as alert as usual. The Tribunal asked the applicant whether he was having trouble talking to the Tribunal and understanding and responding. He said he was not. The Tribunal asked him whether there were certain times of the day when he felt better than others. He said that usually from around 8am to 12 noon or 1pm was better than the afternoon. The Tribunal asked the applicant whether he was happy to appear by video again for the next hearing and he said that he was.
The Tribunal invited the applicant’s representative to provide the Tribunal with any updated information about the applicant’s medical situation and any submissions about how this might affect his capacity to participate in a hearing. The Tribunal also invited the applicant’s representative to provide written submissions on whether, and how, the applicant’s status as a former drug addict might be relevant to his claims for protection.
The Tribunal considers that in this first hearing the applicant understood the Tribunal’s questions and was able to respond coherently and that he was able to participate in the hearing in a meaningful way. The Tribunal also accepts the applicant’s confirmation that a video hearing is most appropriate for him and considers that this best accommodates his comfort and safety in the circumstances.
Additional written submissions
On 25 October 2022, the applicant’s representative provided a letter from Dr [A] of [named clinic], Victoria dated 14 October 2022, which sets out the list of medications being taken by the applicant, the strength and dosage, and who it is being dispensed by. Dr [A] explained that the medication is for pain management for the applicant as a palliative care patient and includes opiates, steroids, pregabalin and NSAIDS.[1]
[1] The names of the medications listed are Coloxyl with Senna, Dexamethasone, Diazepam, Esomeprazole, Hydromorphone, Ibuprofen, Methadone, Metoclopramide, Oxycontin, Panadol and Pregabalin.
The letter goes on to state about the applicant:
He is on a deteriorating phase with bony metastasis as a concern for his increasing pain, but adjustment has been initiated to make available opiates as a prn dose. He is aware of his current management wherein active treatment was no longer feasible and has accepted the rationale in this instance.
The palliative physician expects end of life to ensue in weeks duration.
The applicant’s representative also provided written submissions in which it is submitted that the applicant is in a vulnerable position because of his cancer and he is also a former drug user. He does not have anyone in Vietnam who can take care of him. Medication may not be accessible or affordable for him in Vietnam. For him to go back to Vietnam will lead to life-threatening situations.
The submissions refer to the DFAT Report on Vietnam[2] which outlines the conditions for drug users in Vietnam. It is submitted that the applicant will suffer stigma, disadvantages and discrimination. It is submitted that methadone treatment is available in Vietnam but given the applicant’s circumstances it would be difficult for him to access those services and he may be vulnerable to drug abuse. Subsequently, he may be arrested and punished for drug abuse before going through the system to receive adequate care and treatment. It is submitted that drug users may be required to be registered with the police and detained in government like centres where the applicant will be mistreated and will not get the assistance he needs for his medical condition. It is submitted that the applicant’s medical condition ought to be given significant weight.
The second hearing
[2] The current report is DFAT Country Information Report Vietnam 11 January 2022 (DFAT Report).

The Tribunal listed the resumed hearing for 10 January 2023 and 11 January 2023. The reason for listing two hearing dates was to give the applicant and the Tribunal flexibility in case the applicant became too tired or was too unwell to appear.
On the morning of 10 January 2023, there were some technical issues with the applicant’s video equipment and by the time they were resolved, when asked by the Tribunal whether he felt well enough to talk the applicant said he was too tired. The Tribunal adjourned the hearing again to the following morning.
The applicant appeared before the Tribunal on the morning of 11 January 2023 by MS Teams video to give evidence and present arguments in relation to his case. The applicant appeared from his home. His carer and nurse were also present in the house and the Tribunal explained to them the confidentiality obligations around the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s representative attended the hearing by video.
In this hearing, the Tribunal found the applicant to be lucid and does not consider that he had problems understanding or responding to the Tribunal’s questions. The Tribunal paused at frequent intervals during the hearing to ask the applicant whether he felt well enough to continue with the hearing and he said he did. The Tribunal does not have concerns about the applicant’s capacity to participate in the hearing on 11 January 2023 and considers that he had the opportunity to participate in the hearing in a meaningful way.
Nationality
The applicant claims to be a citizen of Vietnam and provided to the Department a copy of his Vietnamese birth certificate and certified translation. The delegate noted that the applicant’s identity was also confirmed on 22 February 2020 when he was detained. The delegate was satisfied that the applicant had provided sufficient evidence of his identity which was consistent with his narrative and biometrics. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Vietnam. The Tribunal finds Vietnam is his receiving country for the purpose of assessing her claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearing, the Tribunal discussed with the applicant his family, his health, his migration and visa history, his early life in Vietnam and any connections he still has there, his travel to Vietnam in 2015 and why he says he fears returning to Vietnam. Overall, the Tribunal found the applicant to be a witness of truth, however that does not mean the Tribunal necessarily accepts his claims.
The applicant’s connection to Vietnam
In the hearing, the applicant gave evidence that he was born in Cam Ranh, Vietnam, which is a city near the coast. Before coming to Australia he lived with his paternal grandmother. She is no longer alive. He is not in contact with any remaining relatives in Vietnam. His mother remarried and he does not know where she lives. He has no friends in Vietnam.
He travelled to Vietnam in 2015 because he wanted to quit methadone but he wasn’t successful. He stayed in a hotel in the Nha Trang area.[3] His siblings looked after his money while he was away and sent him his own money while he was over there. He earned that money through some trading activities.
[3] Nha Trang, Khánh Hòa, Vietnam to Cam Ranh, Khánh Hòa, Vietnam - Google Maps (accessed 7 February 2022) According to Google Maps, Nha Trang is around 45km from Cam Ranh.
The Tribunal accepts that the applicant has no friends or relatives in Vietnam with whom he is in contact and that he has no support network there. The Tribunal accepts the applicant’s evidence about why he travelled to Vietnam in 2015.
The applicant’s family in Australia
In the hearing, the applicant gave evidence that in Australia he has his father, step-mother and five brothers. He does not speak to his father but he is still in touch with two of this brothers. They are his youngest brother and his brother immediately younger than him. He last saw his youngest brother one month ago and he speaks to his two brothers on the phone. The applicant does not have any savings or sources of income. If he needs something, his carer arranges it.
The Tribunal accepts that the applicant is estranged from his family in Australia except for two of his brothers. The Tribunal accepts that the applicant does not have money of his own or an income.
The applicant’s health situation
The Tribunal has set out above the evidence about the applicant’s health situation, which it accepts. The Tribunal accepts that the applicant has terminal cancer and he has not received therapeutic treatment for his cancer for some time. The Tribunal accepts that the applicant is in palliative care which involves him receiving high doses of various painkillers several times each day and that he requires the assistance of a carer for his day-to-day needs. The Tribunal accepts that the applicant is a former drug addict and that he receives methadone daily as an opioid replacement.
Does the applicant meet the refugee criterion?
The applicant’s claim about being the son of a refugee
The applicant’s original claim made in his protection visa application is that he fears returning to Vietnam because he is the son of a refugee (his father) who was being harmed by the Vietnamese government. In the Tribunal hearing, the Tribunal raised this claim with the applicant because he did not mention it when asked about why he feared returning to Vietnam. The Tribunal also reminded the applicant that he had been asked by the Department to provide more information about this claim but he did not do so.
The Tribunal explained to the applicant that the DFAT Report states that being a failed asylum seeker is not generally stigmatised. It put to the applicant that it might find that based on the country information, the fact that he left Vietnam 17 years ago as a young person, the fact that he travelled back to Vietnam voluntarily for three months in 2015 and apparently did not suffer any harm, and the lack of any other evidence offered by him about why he would be harmed due to his father being a refugee, that he would not face a real chance of serious harm for this reason if he returned to Vietnam.
The applicant responded that his solicitors took care of this and he does not know much about it. Based on the applicant’s response and the lack of evidence to support this claim, the Tribunal does not accept this claim and finds that if the applicant returned to Vietnam in the foreseeable future, he would not face a real chance of serious harm arising from these circumstances.
The applicant’s claims relating to his access to medical care and treatment in Vietnam
In his written submissions, the applicant claims that he will face harm if he returns to Vietnam for the following reasons:
· he will not be able to access medical care in Vietnam because he has no money and he has no support there;
· as a former drug user, he will be mistreated and it will be difficult for him to access methadone.
In the Tribunal hearing, the applicant gave evidence that he fears returning to Vietnam because he is afraid due to his involvement with methadone and he has cancer and he has nowhere to stay and no money and no medication and nobody to help him.
In the Tribunal’s view, based on the applicant’s current circumstances he would be returning to Vietnam as a person who requires medical care in the form of palliative care, rather than treatment for cancer, and access to methadone. The Tribunal has considered the applicant’s claims on this basis and discussed them with him in the hearing.
In the hearing, the Tribunal asked the applicant where he would live if he returned to Vietnam. The applicant said he did not know how to answer this question. The Tribunal put to the applicant that based on the evidence before it, it might find that he would go to Ho Chi Minh City. The applicant said he lived in Cam Ranh previously and he does not know where to live. In considering the applicant’s primary needs if he returned to Vietnam, which are palliative care services and access to methadone, the Tribunal is of the view that the applicant would be best placed to have access to these things in a large city. Ho Chi Minh City is the largest city in Vietnam and is around 400 km from Cam Ranh in the south of Vietnam.[4] Based on these considerations, the country information discussed below, and the fact that the applicant does not have strong ties to any other place in Vietnam, the Tribunal finds that if the applicant returned to Vietnam in the foreseeable future he would live in Ho Chi Minh City.
[4] Cam Ranh, Khánh Hòa, Vietnam to Ho Chi Minh City, Vietnam - Google Maps (accessed 8 February 2023); DFAT Report 2.4.
As discussed with the applicant in the hearing, the DFAT Report explains that economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese. Hospitals are the primary place of care for many people and the level of care is higher in urban areas. Most of the population is enrolled in the social health insurance scheme. Some vulnerable groups in the population are fully subsidised and others pay insurance premiums. Healthcare in Vietnam is not free and requires a co-payment from patients.[5]
[5] DFAT Report 2.13 – 2.15
Country information discussed with the applicant also indicates that palliative care services are available in Vietnam. There are doctors from major hospitals and cancer centres in Vietnam who have received training in palliative care and who provide services. There are several hospitals in Ho Chi Minh City and other larger places that provide palliative care services for cancer patients.[6] The Tribunal has also located country information which refers to a hospice in Thu Duc city, which is part of Ho Chi Minh City, run by a Catholic priest. This hospice provides palliative care services to vulnerable patients who, for example, have no money, have nowhere else to go or have no family to help them.[7] The hospice is funded by the Catholic church which meets the cost of medicine, insurance and food and it has assisted many people over the years. Country information indicates that charitable hospices such as this one have existed for some time in Ho Chi Minh City.[8] The Tribunal put to the applicant that the country information indicated that there are palliative care services available to people in Vietnam regardless of their personal situation and therefore, it might find that the applicant would be able to access palliative care services in Vietnam if he returned there. The applicant responded that he did not think it would apply to him because of his criminal background and they would not want to help him.
[6] (accessed 8 February 2023); (accessed 8 February 2023); (accessed 8 February 2023)
[7] (accessed 10 January 2023)
[8] Vietnam: Integrating Palliative Care Into HIV/AIDS and Cancer Care, Krakauer E et al, Journal of Pain and Symptom Management, Vol 33, No 5, May 2007: doi:10.1016/j.jpainsymman.2007.02.004 | Elsevier Enhanced Reader (accessed 8 February 2023)
The Tribunal also discussed with the applicant that the Vietnam Ministry of Health (MoH) specifically considers patients with opioid addictions and people who are on methadone substitution therapy in the context of palliative care. The MoH Guidelines on Palliative Care for Cancer and HIV/AIDS Patients from 2006 state that methadone substitution therapy should continue uninterrupted while the pain treatment or palliative care treatment is conducted.[9] There is also country information indicating that patients do not have to pay for methadone medication even if they do not have health insurance.[10] The Tribunal put to the applicant that the country information indicated that he would not be denied ongoing access to methadone or palliative care as a former drug addict, or that as a former drug addict he would be placed in a government treatment centre, particularly in light of his serious medical situation. The applicant responded that in Vietnam it takes money for people to help you and the money he would have to pay for methadone and his cancer treatment would be too much and he could not survive.
[9]Vietnam: Integrating Palliative Care Into HIV/AIDS and Cancer Care, Krakauer E et al, Journal of Pain and Symptom Management, Vol 33, No 5, May 2007: doi:10.1016/j.jpainsymman.2007.02.004 | Elsevier Enhanced Reader (accessed 8 February 2023); see Vietnam Ministry of Health, Guidelines on Palliative Care for Cancer and AIDS Patients, 2006.
[10] Quality of life in methadone maintenance treated patients in Long An, a southern province of Vietnam - Bui Thi Tu Quyen, Linh Thuy Nguyen, Vo Thi Viet Phuong, Le Tu Hoang, 2020 (sagepub.com) (accessed 8 February 2023)
The Tribunal has considered the applicant’s responses but does not accept them as they are not supported by the country information. In light of the information set out above, the Tribunal considers that if the applicant returned to Vietnam in the foreseeable future he would be able to access palliative care services. The applicant gave evidence to the Tribunal that he did not think his brothers would be able to help him financially if he returned to Vietnam. Even if the Tribunal accepts this, country information referred to above indicates that there are charitable services available in Ho Chi Minh City for vulnerable palliative care patients who may not otherwise be able to access services and that these charitable services meet all the patients’ costs. The country information does not indicate that the applicant would be unable to access this type of charitable service. Further, the country information does not suggest that the standard of palliative care services available in Ho Chi Minh City, which is where the Tribunal has found the applicant would live in Vietnam, are inadequate such that this would result in the applicant experiencing harm. The country information also specifically indicates that methadone is available at no cost to palliative care patients who require it and that government policy is that this methadone treatment should continue uninterrupted in conjunction with the palliative care. Based on the evidence before it, the Tribunal considers that this would be applicable to the applicant.
As a consequence, the Tribunal finds that if the applicant returned to Vietnam in the foreseeable future he would have access to palliative care and methadone. Therefore, the Tribunal does not accept his claims that he would be unable to access these things and that he would be mistreated. Accordingly, the Tribunal finds that if the applicant returned to Vietnam in the foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal acknowledges that returning to Vietnam where the applicant has not lived since he was a young person, as a terminally ill person with no personal support network, would be very difficult for him, however the Tribunal does not consider that he would face a real chance of serious harm arising from these circumstances.
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Vietnam now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?

As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa). The Tribunal has taken the applicant’s written submissions into account in this regard.
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[11] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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 that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[11] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is 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).
Referral to the Minister for intervention
Section 417 of the Act 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 it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 345, 351, s 417, s 454 and s 501J)’ and has decided to refer the matter for consideration for the following reasons.
In the Tribunal’s view, the public interest would be served by the Australian Government responding with care and compassion to the applicant’s unique circumstances.
The Tribunal notes the exceptional circumstances:
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
Strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident).
Based on the medical evidence set out above, it is clear that the applicant’s health is poor. He is terminally ill and evidently only has a relatively short time left to live. He is not receiving further therapeutic treatment for his cancer and is in palliative care where he requires regular high doses of strong pain medication administered by a medical professional and assistance from a carer to go about day-to-day tasks. He has not lived in Vietnam since he was [a teenager] and has no family or friends there. He has no, or extremely limited, financial resources available to him. All his family members in Australia, including his two brothers with whom he still has contact, are Australian citizens and live in Melbourne. The applicant is only [age] years of age and his criminal record shows he has lived a troubled life in Australia which is coming to a premature end.
While the Tribunal does not have expert medical evidence before it which states that the applicant is medically unfit to travel long distances by air, the Tribunal considers that this is likely to be the case based on the medical evidence before it.
The Tribunal considers that there are compassionate circumstances relating to the applicant’s health which, if not recognised, would result in serious, irreversible harm and continuing hardship to him if he were not permitted to remain in Australia for the remainder of his life. The Tribunal also considers that there are strong compassionate circumstances which, if not recognised, would result in irreparable harm to the applicant’s Australian citizen brothers, if the applicant were not permitted to remain in Australia near his family members for the remainder of his life.
The Tribunal notes that in the hearing, the applicant expressed his deep gratitude for the care and treatment he was receiving from his medical team and carers outside the detention centre. He said they treat him with respect and like a human being. Based on the evidence before the Tribunal, since being diagnosed with cancer it appears that the applicant has received excellent care from the Australian Government which has responded to his complex needs.
The Tribunal notes that the applicant himself may also request intervention by the Minister under s 417 if he wishes to do so.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2023] AATA 1703

9 February 2023

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