2310605 (Refugee)

2310605 (Refugee) [2023] AATA 4138 (25 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2310605
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Luke Hardy
DATE:25 August 2023
PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 August 2023 at 3:25pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – son of escaped political prisoner – searches and threats by authorities continuing after father’s death – membership of particular social groups – person with mental health condition and returned failed asylum seeker with criminal record – unlawful boat departure with family as child and assessment as refugee – undiagnosed schizophrenia, anti-social behaviour and minor criminal record as teen, and serious record as adult – applications for citizenship refused on character grounds – refugee visa cancelled and immigration detention – compliance with medication and psychiatric consultations – family members’ return visits with no harm – claim on political grounds not accepted – variable access to and quality of public mental health care and prohibitive cost of medication – little or no family or social support, societal attitudes and threat to capacity to subsist – possible long-term brain damage – character test – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4)(b), (5), 36(2)(a), 65, 501(1), (6)
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
CSV15 v MIBP [2018] FCA 699
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2000) 101 FCR 501
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
SZTEQ v MIBP (2015) 229 FCR 497
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Vietnam. He told me that, as a minor aged [Age], he arrived with an aunt by boat in Hong Kong before 16 June 1988, making him eligible for prima facie refugee status under the 1989 Comprehensive Plan of Action for Indo-Chinese Refugees (CPA). He said his parents and siblings joined him in Hong Kong after that cut-off date, where they were detained together, and had to submit to case-by-case-refugee status determination. His father met the criteria and the family was offered for third-country resettlement. All boat people “screened out” under the CPA were expected to repatriate to Vietnam. Voluntary repatriation proceeded gradually throughout the 1990s. The remaining non-refugee asylum seekers were repatriated after that. The Vietnamese government undertook under the terms of the CPA to reintegrate and not to punish any repatriates. Abundant reporting indicates that it adhered to that undertaking. International agencies were permitted to visit and monitor returnees and reintegration projects for several years.[1]
[1] Casella, Alexander (Sasha), ‘Managing the “Boat People” Crisis: The Comprehensive Plan of Action
[The applicant] and his family all arrived in Australia from Hong Kong [in] May 1992 on Refugee (subclass 200) visas, which are for people who the United Nations High Commissioner for Refugees (UNHCR) has referred to Australia for resettlement. [The applicant] was then aged [Age] and his integration in Australia was difficult. He got into fights and attracted a teenage criminal record. He had schizophrenia that was not diagnosed until much later. He got caught up with prohibited drugs. The former Immigration Department refused his application for citizenship on “character” grounds, at a time when the underlying, apparently overlooked, factor was mental health. The Department appears to have approached him solely through the “character” lens ever since, notwithstanding that mental health has arguably been a significant factor in his anti-social history.
[The applicant] applied again for citizenship in 2007 but it was again refused on “character” grounds.
On 9 January 2020, a delegate of the Minister cancelled [the applicant]’s refugee visa on “character” grounds. He sought review of that decision in this Tribunal, differently-constituted, and the decision was affirmed. [The applicant] then lodged a PV application on 9 June 2023. The delegate refused to grant the visa on 17 July 2023.
[The applicant], currently detained, sought merits review and appeared before the Tribunal on 9 August 2023 to give evidence and present arguments.
The Tribunal hearing was facilitated by interpreters in the Vietnamese-English medium who attended by video and telephone.
[The applicant] appeared involuntarily impeded in his speech, due possibly, on the face of things, to some brain damage or the side effects of medication, but was able to make himself understood. He told me he receives an injection of the anti-psychotic drug Invega every three months. Notwithstanding these factors, I am satisfied that he was not prevented by circumstances beyond his control from giving cogent evidence at the 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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Claims
[The applicant] is from Hai Phone in Vietnam’s north. He has never been employed. He said he has been unable to obtain employment due to his mental illness.
[The applicant] provided a summary of his past offences in Australia in his PV application:
Breaking and Entering
Possession of Knife in Public Place
Possession of Heroin
Possession of Cannabis
[The applicant] originally claimed to the Department that he left Vietnam on or around [Date] when his father, and escaped political prisoner, “took my mum, me and my [sisters] and my brother to Hong Kong via boat from the [Vietnamese] port at Quan[g] Ninh.” This version of events differs from what he told me and would suggest that his family was not screened according to the CPA’s case-by-case refugee status determination process but I am prepared to accept that the version of events provided in the original PV application is a simplified version of events.
[The applicant]’s other claims to the Department are accurately summarised in the delegate’s decision:
·He left Vietnam sometime on [Date]. His father was a political prisoner who escaped from jail and took his family to Hong Kong by boat from Qua Ninh. They were found to be refugees by the United Nations High Commissioner for Refugees (UNHCR) in Hong Kong and came to Australia on a permanent visa in 1992. He fears persecution because of his family’s political opinion and his father’s criminal history.
·He fears harm in Vietnam due to his imputed political opinion as a son of a fugitive who escaped prison and took his family to Hong Kong in [Year]. The authorities have been looking for them since and have made death threats against his family members. Despite his father’s death in 2002, they continue to search for his father’s relatives. He fears he will be tortured, detained or killed by the Vietnamese authorities. He also fears the same harm from community members who had issues with his father and his father’s criminal offending.
·His relatives told him that the Vietnamese authorities have blacklisted his family’s name and the police are trying to find and punish his father’s relatives due to his father’s prison escape.
·He is not personally in contact with anyone in Vietnam but his mother has some connections who continue to communicate with her about what is happening there.
·His mother recently told him that the Vietnamese police came to his family village to look for his father and his family. Members of the village contacted his mother to inform her.
·He fears he will be discriminated [against] and denied basic support because of his membership to a particular social group (PSG) of persons having the serious mental health disability of schizophrenia. In Vietnam, people with mental disability are treated like animals. Because the Vietnamese authorities are seeking his father’s relatives, he needs to remain in hiding and will not be able to access medical care.
·He is currently taking Invega Depot injections every three months and sees a psychiatrist frequently. He will not be able to access these injections nor can he afford them as he could not support himself. He will die if his mental health issues are not treated.
·Due to his mental health and having lived most of his adult life in Australia, he has trouble remembering exact details about his history in Vietnam.
·He fears he will cease to subsist if returned to Vietnam as he has no support there. He has no family and friends there.
·There is no part of Vietnam that is safe for his family.
[The applicant] essentially claimed to fear being persecuted in Vietnam for reasons of “politically unfavourable family background” which relates to the s.5J(1)(a) criterion of (imputed) “political opinion” and “membership of a particular social group”, characterisable generally as “persons with politically unfavourable family background” and more directly as a member of the family of which his politically dissident father was also a member.
[The applicant]’s claims about being persecuted and stigmatised in Vietnam in response to his mental illness is an obvious “particular social group” claim.
Other claims arise on the material before me: [the applicant] at least implicitly fears being persecuted for reasons of his having departed Vietnam illegally (a claim relating to “political opinion” and “membership of a particular social group”) ; his having been found to be, and resettled as, a refugee (a claim also relating to “political opinion” and “membership of a particular social group”); and his potential profile as an ultimately unsuccessful asylum seeker (“membership of a particular social group”). Another issue that arises on the facts is [the applicant]’s criminal record in Australia and whether he may face further prosecution, commonly regarded as “double jeopardy”, for reasons of being a felon with a foreign criminal record “membership of a particular social group”).
At the Tribunal hearing, [the applicant] said that neither he, nor his siblings, nor his parents had ever visited Vietnam after arriving in Australia. He said his mother’s brother and sister had however visited there. He did not suggest they had met with any potentially relevant difficulty. He said his late father’s siblings had also visited Vietnam without any potentially relevant difficulty.
This evidence struck me as interesting because these family members would have been travelling in and out of Vietnam at a time when, according to [the applicant]’s original claims, his family was on a “black list” and subject “death threats”. As shown above, [the applicant] told the department in his original PV application that, despite his father's death in 2002, Vietnamese authorities continued to search for his father's relatives. He has not suggested, however, that any of these relatives have ever come to any harm, if any close relatives of his parents remain in Vietnam at all.
[The applicant]’s evidence indicates that his father was not merely a man with an unfavourable family background, but at least in part a political prisoner in his own right. He told the Department that his father was convicted in the matter of selling explosive agents and for fighting with the police. These two offences sound to me like non-political offences.
On the subjects of actual and imputed political opinion, and of unfavourable political background, I put to [the applicant] that by 1992, Vietnam had long ago stopped imprisoning and “re-educating” people due to unfavourable political background[2], at a time when the Đổi Mới (“renewal” or “renovation”) economic reforms[3] championed by Communist Party Chief Do Muoi were underway, aiming to increase national productivity in the wake of the collapse of the Soviet Union and a near-extinction of entrepreneurship[4].
[2] “A (Purposefully) Forgotten Chapter: Re-education Camps In Vietnam”, The Vietnamese, 29 April 2023,
[3] “Vietnam’s Premier Becomes Party Chief: Communists: Do Muoi advocates market reform without greatly altering the political system.” Los Angeles Times, 28 June 1991,
[4] “Vietnam: the Economy”, Country Studied: Vietnam,
In response, [the applicant] did not disagree with this summary of events in Vietnam. He also said that whatever case or issue the Vietnamese authorities had been pursuing against his father over the years, apparently whether it was criminal or political or both, they finally closed the matter of pursuing him after his death in 2002 and after his mother was asked to provide, and indeed then provided, evidence of his decease in Australia. He said his father’s siblings who visited Vietnam had been able to shop and sightsee there, as well as being able to commence the building of a family tomb in the northern port city of Hai Phong. This struck me as evidence of [the applicant]’s father and his relatives being of no further interest to the Vietnamese authorities.
I have considered [the applicant]’s claim about fearing harm “from community members who had issues with his father and his father's criminal offending.” However, [the applicant] made it clear during the Tribunal hearing that he no longer fears being persecuted in connection with his late father’s history.
[The applicant] said his mother was able to help his father escape from jail after he was transferred from one prison to another. He said his mother went to visit his father and carried sleeping tablets with her. He said his mother was able to make a prison guard fall asleep whereupon she was able to release her husband from captivity. This story sounded to me quite fanciful, but I do not hold that against [the applicant] himself who was not at the time situated anywhere near where these alleged events occurred.
I have nevertheless considered whether [the applicant] faces a real chance of being persecuted in Vietnam because of his mother’s purported role in his father’s escape from jail. None of the evidence before me, however, suggests that he would. His position is that to the extent that it lasted at all, the authorities’ interest was solely in [the applicant]’s father. I give some weight in this matter to the fact that [the applicant]’s mother’s siblings have evidently travelled to, in and out of Vietnam without any potentially relevant problems.
I put to [the applicant] that on his own evidence he no longer had reason to fear being persecuted due to his late father’s or family’s actions, history or background. He did not disagree. He then mentioned that he might nevertheless have a negative profile with Vietnamese authorities simply due to his having escaped from Vietnam himself.
Relevant to this, I have had regard to recent reporting from DFAT[5]:
[5] DFAT Country Information Report Vietnam, 11 January 2022
TREATMENT OF RETURNEES
Exit and entry procedures
5.25 Article 23 of the Constitution allows citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
5.26      Vietnam has an exit control list (ECL) – criminal defendants, those on probation and people subject to civil court orders, for example, may be prevented from leaving Vietnam. Others may have their passports confiscated. The nature of the list and who is on it is a secret and DFAT does not have enough information to say how the ECL works. One source familiar with the ECL told DFAT that removal from the list can be facilitated through corruption but DFAT is unable to confirm how commonly that occurs.
5.27      Immigration systems at different kinds of borders (land, sea and air) may not be linked or may not contain consistent information. In some cases different Government agencies using different systems run different border crossings. DFAT understands that these inconsistencies are being fixed over time. Sources told DFAT that some people may be able to cross smaller border crossings with less attention paid to them or it may be easier to bribe officials at smaller crossings. Some people cross the border at land crossings daily, either at designated crossings or outside them. Land borders are vast and difficult to police.
5.28      Most people leave Vietnam through designated land border crossings or via ships and airports. It is possible to cross the border in remote areas and these routes have been used by people traffickers during COVID-19 as formal border crossings have been more closely watched. DFAT understands from one source that smaller, remote border crossings are less likely to have facilities to check those crossing, and officials there are more open to bribery. DFAT was unable to confirm these practices. Another source told DFAT that one need only pay about USD30 to get a bus across the border and are unlikely to be stopped by officials. COVID-19 restrictions have led to fewer border crossings generally and patterns of border crossings may change quickly.
Conditions for returnees
5.29      Articles 120 and 121 of the Penal Code prohibit ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the People’s Government’ and describes penalties of between three and 20 years’ prison for both organiser and individual émigrés. DFAT is not aware of any cases where these provisions have been used against failed asylum seekers returned from Australia.
5.30      In-country sources report that all individuals involved in people smuggling operations, whether as organisers or travellers, are typically held by authorities for questioning to determine their involvement in operations. Sources have described cases where people have been detained for multiple days or recalled for further questioning. DFAT understands that would-be migrants who have employed the services of people smugglers at worst only face an administrative fine, including in cases of multiple illegal departures.
5.31      DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.
5.32      Returnees, including failed asylum seekers, labour migrants and trafficking victims, typically face a range of difficulties upon return. These include unemployment or underemployment, and challenges accessing social services, particularly in cases where household registration has ceased. In addition, trafficking victims face social stigma and discrimination, and may experience difficulty in accessing appropriate trauma counselling services outside of large cities. Returnees may be offered assistance by NGOs, but this may be more available to victims of trafficking rather than failed asylum applicants.
5.33      Many returnees have high levels of debt from funding their travel out of Vietnam. Sources in Vietnam have reported cases of moneylenders taking borrowers’ houses or land as repayment, or borrowers having to flee loan sharks when they are unable to repay their loans ... Sources told DFAT that indebtedness is reportedly lower among people living in irregular migration hotspots (such as Nghe An and Ha Tinh provinces), as low or no-interest loans are generally organised within the community. Those who travel from outside of these provinces typically have fewer connections and thus tend to borrow from external lending groups who generally demand high interest rates.
5.34      Being a failed asylum seeker is not generally stigmatised. Migration, particularly internal migration, has been a feature of Vietnamese lives for decades, is very common and is even encouraged by the Government. DFAT is not aware of cases of returnees being denied citizenship.
5.35      DFAT assesses that most people who have been subject to people smuggling are seen by the Government as victims, not criminals [with the possible exception of those] who use their time overseas to publicly oppose the Government, or who are wanted for similar actions domestically … This does not apply to the majority of returning Vietnamese, including those who have departed to seek asylum. This assessment applies to those who have sought asylum in Australia and not to ethnic minorities who have fled by land to neighbouring countries who may be returned from those countries. …

I questioned whether [the applicant] would ever be held responsible for his own departure from Vietnam as he has always claimed that the decision for him to leave the country had been made over his head by adults when he was still a child: he had had so say in the matter. I indicated that, on the independent evidence, it would be hard conceive of Vietnamese authorities regarding his removal from Vietnam by adults as an issue of concern, let alone after 35 years. I also put to him, on the basis of the DFAT reporting that, whereas there are penalties for human traffickers who organise unauthorised boat departures, returned asylum seekers, successful or otherwise, are not punished in Vietnam. [The applicant] did not rebut any of these positions put to him.
We discussed “double jeopardy”. [The applicant] provided a description of offences, penalties and sentences over the years. He said that back before he applied for citizenship in [Year] he was charged by police and convicted by a children’s court over a fight with a friend, and had to serve one hundred hours of community service at the [Organisation]. It was this minor offence, however, that led to his being refused citizenship in [Year] on “character” grounds, evidently very bluntly applied, considering that the man has mental health disorders including suffers from schizophrenia.
[The applicant] evidently went downhill from there. He told me he committed three offences between [Year] and 2007 all relating to personal-use drug possession. He mentioned marijuana and methamphetamines. I recall he also mentioned heroin in his PV application. One reasonable view on this is that his behaviour during this period is not surprising given his mental health and Vietnamese community attitudes to the same, along with the institutional shunning he received from the Minister in [Year]. It is not uncommon for the kind of drug-related offences in [the applicant]’s case merely to warrant committal to rehabilitation. However, it seems that [the applicant]’s mental health problems continued to go untreated. Significantly, he was jailed in 2009 for four to five months after assaulting his brother, and he was again refused citizenship, this time with more of a criminal record to his name. He said that in 2020 he received a sentence of over twelve months for breaking and entering into a home with intent to steal. This was the offence that saw his residence revoked.
[The applicant] indicated to me that when he is medicated, with which regime he willingly co-operates, he does not have the impulses that tip him over into violence or other criminality. It appears that it may have taken until he was jailed in 2020 for him to receive appropriate mental health treatment.
I put to [the applicant] that, according to DFAT[6], it would be highly unlikely that he would face re-prosecution in Vietnam for offences committed in Australia, not least because those crimes did not apparently involve any transnational activity. He did not rebut this in any way.
[6] DFAT Country Information Report Vietnam, 11 January 2022
I asked [the applicant] about contact with and support from his family, as no family member has evidently offered any support for his PV application. He said he is in occasional contact with his mother and a sister. I observed that none of his close family members had made any submissions on his behalf to support him in the present matter and he said this impression was correct. I asked him why none of his family appeared to be supporting him and he said he did not know. I asked if his family might be less scared than he claims to be about his protection prospects in Vietnam and he said, “I don’t know what to say. I think my mother supports me.”
[The applicant] told me at the hearing that he is compliant with and responding well to the Invega regime. He said that Invega is not subsidised in Vietnam and is only available at what would for him be a prohibitive cost. I asked him what would happen to him of he is removed to Vietnam. In reply, he said he will be locked up. I asked him if he would be locked up out of an intention to harm him or, say, a desire to protect him and others from harm, and he said that he would be likely at least to be harmed by other “inmates”. I asked him if he could direct me to any information, say, about mental health personnel abusing mental health patients, and he said, “I don’t know.”
[The applicant] added that his mental health profile would prevent him from being able to secure employment in Vietnam. He said it would even make it hard for him to find accommodation. He indicated that no relatives would be interested in helping him because he is schizophrenic and has a criminal record. He said he would have difficulty accessing any of the care that the state provides to people with schizophrenia in Vietnam. He said he had heard of some nuns somewhere in Vietnam who work with persons who have medical histories involving mental health problems, but indicated that he had no idea who they are or where they are based.
I have considered the country information, cited by the Minister’s delegate in this matter, describing societal and medical treatment of people with schizophrenia in Vietnam:
In its January 2022 country report on Vietnam, DFAT provide a brief overview of the mental healthcare system:
Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and Ho Chi Minh City (HCMC). Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.
DFAT provide the following information about quality of mental healthcare treatment and cost:
The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.
Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.
A 2018 Viet Nam News article reports that ‘some mental health and psychosocial services are provided through social welfare and social protection centres, mental health hospitals and psychosocial units in schools, their quality and coverage is limited, and often focused on severe mental health disorders.’
In a country information report on mental healthcare in Vietnam, the UK Home Office cite October 2020 country information sourced by MedCOI about the availability of antipsychotic medications in Vietnam. Using an example of medications available in Đồng Nai province, MedCOI report the following antipsychotics were available: Clozapine Haloperidol, Fluphenazine, Olanzapine, Quetiapine and Risperidone.
Schizophrenia is ranked as the seventh most prevalent mental disorder in Vietnam, with 0.5 per cent of the population living with the condition. However, people with schizophrenia make up 60 per cent of patients treated in psychiatric hospitals in Vietnam. People with schizophrenia also have access to a community-based mental health program (CMH) which includes:
Free access to a number of essential psychotropic medicines for prioritized mental disorders such as schizophrenia, depression and epilepsy, as well as monthly consultation with the medical staff in the community health stations. Financial and social support are also offered to patients with severe mental disorders and their caregivers. Moreover, the psychiatric private doctors’ offices cover the community based services in the urban areas.
Schizophrenia, along with epilepsy, is considered a ‘societal disease’ and patients are treated free with medication provided by the government.
An ODI report published in March 2022 based on a study of mental health needs and psychosocial well-being of adolescents in Vietnam notes that ‘Viet Nam’s mental health system is heavily focused on treating severe mental disorders (especially epilepsy and schizophrenia) in hospitals in urban areas’.
Chapter three of the ODI report provides important information about the mental health in Vietnam including the legal framework, and the policy and programme environment that supports the delivery of mental health services. Within the healthcare system, the government does focus on treatment for schizophrenia:
Viet Nam’s healthcare is built on a four-tier system (central, province, district and commune) and mental health is provided mainly through two types of service: community-based and hospital-based. While most mental health services are provided in hospitals, follow-up usually occurs at the community general practice (Lee et al., 2015). Psychiatrists only work at the central and provincial levels of the four-tiered system (ASEAN Secretariat, 2016). With a focus on epilepsy and schizophrenia, the government subsidises the costs of running mental hospitals.
The government takes a tiered approach with the delivery of psychiatric care and treatment, with the largest and most comprehensive treatment available in the national psychiatric hospital followed by provincial psychiatric hospitals. The provincial psychiatric hospitals are responsible for referring patients to local level ‘commune health stations’ that provide on-going care – including the supply of psychotropic medications:
National psychiatric hospital/central mental hospital: The national psychiatric hospital controls the mental health system, manages other hospitals and leads the national mental health programme. The National Psychiatric Hospital No. 1 (Hanoi) is the MoH’s [Ministry of Health] authorised institution to implement mental health policy and generally supervises the professional activities for mental health across the country. With the National Psychiatric Hospital No. 2 (Bien Hoa), it shares responsibility for direct management of provincial psychiatric hospitals (ASEAN Secretariat, 2016).
Mental/psychiatric hospitals: Provincial psychiatric hospitals provide inpatient services for mentally ill people and are also responsible for implementation of the community mental health programmes by, for example, referring patients to commune health stations for continuing care, supplying psychotropic medicines, supervising the activities of those stations and providing training for staff involved in mental health care (ibid.).
In 2014 there were 36 provincial psychiatric hospitals, 24 departments of mental health in provincial centres for social disease protection or centres for preventive medicine, and 25 departments of mental health in provincial general hospitals. Mental healthcare at district and commune levels is integrated into general healthcare facilities, namely district general hospitals, district health centres and commune health stations (ibid.). According to data collected in 2005, a report by the WHO and Ministry of Health (2006) notes that there were 30 mental hospitals available in the country with a total of 5,000 beds (6.18 beds per 100,000 general population), and 83% of these facilities are organisationally integrated with mental health outpatient facilities (see below). All 30 mental hospitals had at least one psychotropic medicine of each therapeutic class (anti-psychotic, antidepressant, mood stabiliser, anxiolytic and antiepileptic medicines) available in the facility (ibid.). Again, using older data, Niemi et al. (2010) note that, in 2004, 54,500 patients were treated in mental hospitals, and the average number of inpatient days was 35. Only 4% of beds in mental hospitals were reserved for children and adolescents, according to the WHO and MoH (2006), although the total number of beds increased by 300 (6%) in the five years preceding their study.
Below provincial level psychiatric hospitals are outpatient mental health facilities that have ‘at least one psychotropic medicine of each therapeutic class,’ including antipsychotics. Commune health stations sit at the lowest of the four tier healthcare system that delivers mental healthcare. At this point, patients are both referred to a psychiatric hospital and receive referred patients discharged from a provincial psychiatric hospital and implement follow-up care which includes distributing medication. Alongside commune health station[s], there are a limited number of day treatment facilities for mental health and community-based psychiatric inpatient units that can provide care and treatment.
Stigma and discrimination
According to DFAT, alongside cost, stigma is reportedly a barrier to accessing mental healthcare:
Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self-describe as mentally unwell and seek treatment.
A November 2018 article in the International Journal of Mental Health Systems discusses stigma and discrimination experienced by people with schizophrenia:
In Vietnam, stigma towards mental illness is shaped by multiple factors, such as gender, religiosity or urbanity. Research within Vietnam shows high rates of experienced discrimination towards patients diagnosed with schizophrenia, drawing similarity to comparable Asian cohorts such as from China and Western countries.
In particular, discrimination has a negative impact on the help-seeking behavior of patients, families and caregivers. Moreover, severe psychiatric disorders such as schizophrenia are still often perceived as dangerous and incurable madness.
A 2017 article in the Taiwanese Journal of Psychiatry considers societal attitudes towards people living with psychiatric disorders like schizophrenia:
Mental health is considered as an indeterminate and invisible heavy burden, as it causes economic and social harm to the family, the community and the country. Recently we often see in the media that the mental patients are causing quite a lot of crime to the family, the community. Patients with mental disorders that affect their work performance, with severe mental disorders such as schizophrenia, are less likely to continue their careers but can do simple things. In addition, patients with psychiatric disorders vary, depending on their level, which is quite costly for the family. The consequences may be suicide, the loss of the patient to quit work and the patient’s own family to pay for care, unemployment, reduce the quality of life of family members. In addition, patients with mental disorders are less likely to be cared for, even disparaging with words such as “mad” or “mental.” According to the World Health Organization, many mental health communities are not considered to be one. Mental illness is considered a defect in personality.
Sources cited above include:
·'Treatment recommendation differences for schizophrenia and major depression: a population-based study in a Vietnamese cohort', International Journal of Mental Health Systems, 14 November 2018, p.2
·'Mental Healthcare in Vietnam', Tran Van Cuong, Taiwanese Journal of Psychiatry, 2017, p.291
·Methodology: A mixed methods baseline study – ODI undertook a quantitative survey of 844 adolescents across eight middle and high schools in urban and rural areas of two provinces, Khanh Hoa and Nghe An between December 2020 and January 2021. Further information about the study’s methodology can be found at ‘Mental health and psychosocial well-being among adolescents in Viet Nam’, ODI, March 2022, pp.14-20
·‘Mental health and psychosocial well-being among adolescents in Viet Nam’, ODI, March 2022, p.13
·DFAT Country Information Report - VIETNAM - 11 January 2022', Department of Foreign Affairs and Trade, 11 January 2022, p.9
·'Mental Healthcare in Vietnam', Tran Van Cuong, Taiwanese Journal of Psychiatry, 2017, p.297
·‘Remote areas lack mental health services: study', Viet Nam News, 07 February 2018
·'Country Policy and Information Note. Vietnam: Mental healthcare', Version 1.0, UK Home Office, May 2021, pp.20-21
I have made further investigations regarding the issue of social stigmatisation of people with schizophrenia in Vietnam, as material cited above indicates that this can impede access to what treatment and services are available there. Much of the more comprehensive research has been conducted in resettlement countries like the USA, the UK and Australia, meaning that interpretations as to similar social factors existing in Vietnam are extrapolations.
For example, there is the following study[7], or at least its abstract, as a summary (with extensive citations removed here […] in the interest of concision) of traditional, particularly family, prejudices regarding schizophrenia in Vietnamese communities in the USA:
Stigma has been recognized as a major impediment to accessing mental health care among Vietnamese and Asian Americans . The underutilization of mental health care, and disparities in both access and outcomes have been attributed to a large extent to stigma and cultural characteristics of this population. People with neurotic or behavioral disorders may be considered “bad” as many Vietnamese people believe it is a consequence of one’s improper behavior in a previous life, for which the person is now being punished ... Mental disorders can also been seen as a sign of weakness, which contributes to ambivalence and avoidance of help-seeking …. Equally important is the need to protect family reputation; having emotional problems often implies that the person has “bad blood” or is being punished for the sins of his/her ancestors …, which disgraces the entire family ... In these cases, public stigma (as opposed to internal stigma) is the primary reason for delays in seeking help ... Other research has also highlighted the influences of culture on how a disorder may be labeled in different settings, although the presentation of symptoms might be identical ... In Vietnamese culture, mental disorders are often labeled điên (literally translated as “madness”). A điên person and his or her family are often severely disgraced; consequently the individuals and their family become reluctant to disclose and seek help for mental health problems for fear of rejection ... Despite the critical role of stigma in accessing mental health care, there has been little work in trying to understand how stigmatizing attitudes towards mental illness among Vietnamese Americans manifest themselves and the influences of acculturation on these attitudes.
[7] “2047 Mental illness public stigma, culture, and acculturation among Vietnamese Americans”, National Library of Medicine, 18 June 2018,
There is also this 2010 focus group study conducted with Vietnamese Americans in New Orleans and Vietnamese nationals in Bui Chu, in Vietnam, showing that stigma in migrant sample groups can safely be regarded as being somewhat indicative of attitudes in comparable groups back in Vietnam. (For clarity, I have edited out the “No opinion”, Disagree” and “Strongly disagree” statistics.):
Statement   New Orleans (%)             Bui Chu (%)
People with mental illness are fearful
Agree   22.2   15.0
Strongly agree   11.1   5.0
People with mental illness are often pitied
Agree   31.6   50.0
Strongly agree   18.4   7.5
People with mental health problems are dangerous
Agree   15.8   25.0
Strongly agree   7.9   5.0
Families of people with mental health problems
should be embarrassed of themselves
Agree   8.3   10.0
Strongly agree   0.0   7.5
People are not understanding of
those with mental health problems
Agree   26.3   25.0
Strongly agree   21.1   20.0
People with mental illness are usually talked down to
because of their mental health problems
Agree   27.1   20.0
Strongly agree   13.5   7.5
People usually avoid those with mental health problems
Agree   35.9   15.0
Strongly agree   10.3   7.5
It is a sign of personal weakness to receive
treatment for emotional or mental problems
Agree   10.8   15.0
Strongly agree   0.0   20.0
People tend not to like those who seek help
for emotional or mental problems
Agree   8.1   5.0
Strongly agree   2.7   15.0
… This study highlights varying levels of understanding and perceptions toward mental illness among Vietnamese populations. None of the participants seemed to have a good understanding of mental illness. ‘‘Worries’’ and sudden traumatic experiences were cited as common causes for mental illness by both groups. In both locations, participants indicated that sudden mental or emotional shocks, such as wars or natural disasters, could result in mental illness, not only among those directly involved but possibly among the next generations as well.
However, there are also critical differences between the two groups. Vietnamese nationals were more likely than Vietnamese Americans to maintain the traditional view and see the body and the mind as two parts of a unitary model … they were also more able to describe mental illness and person(s) with such illness. Many participants also emphasized the tendency of Vietnamese to keep problems inside rather than talking about them, not wanting to be reminded of the many repeat traumas that they have endured. This finding is consistent with an earlier report on the post-Katrina resilience of Vietnamese in New Orleans ... Another possible explanation for reluctance to talk about mental illness could be stigmatizing attitudes towards those with mental issues. Living in the United States, where privacy and the capacity for independent living are highly valued, may have also contributed to Vietnamese Americans’ view of mental illness as a personal matter, creating unwillingness to admit to or share emotional troubles.
The study did not provide strong evidence that Vietnamese in New Orleans had less stigmatizing attitudes toward mental illness than their counterparts in Bui Chu.
Life in a second culture did not substantially change the Vietnamese Americans’ ideas about mental health; instead it seemed to encourage them to hold back their opinions in discussing MIR issues.
This early investigation opens opportunities for further research on other issues surrounding mental illness and MIR stigma among Vietnamese populations, such as cultural effects on MIR stigma—how they may vary between sites and between generations. While disasters were reported as major causes of mental disorders, their long-term impacts on mental illness, particularly among the offspring of those directly involved, and related stigma are not clear.
To our knowledge, this is the only study that has compared Vietnamese nationals with Vietnamese Americans on perceptions of mental illness and stigma. Its strengths include the use of mixed methods to gain insight to a highly sensitive topic. The study highlights a lack of understanding of mental illness and a potentially high level of stigma in both groups. Much work is needed to reduce the stigma and negative perceptions of mental illness among the overall Vietnamese population.

It is my impression that the percentages I have highlighted show quite substantial levels of prejudice, or at least open acknowledgement of the same, by the sample group in Vietnam towards people with mental health problems in that country.
I have had regard to the following justification and conclusions of a study[8] completed in Hanoi in 2018:
[8] Cox, M.L., “An Exploratory Study on Mental Illness Perspectives in Hanoi”, Vanderbilt University, Nashville, Tennessee, Fall 2018,
This study aims to understand the perspectives of Hanoian university students and mental
health professionals have regarding mental illness. In Vietnam, compared to other parts of the
world, individuals with mental illness are more likely to experience prejudice and inequity in
multiple spheres of their life such as within their family or their work (Niemi, Thanh, Tuan, &
Falkenberg, 2010). Certain aspects of Asian cultures may prevent people from seeking help
because it is a social norm to conceal distress, and the “denial makes them reluctant to accept
psychiatric treatment even if it proves beneficial. They also see accepting treatment as lack of
endurance, personality strength, and dignity" (Ng, 1997, p. 386). Denial to accept help for mental illnesses may have long terms effects on the Vietnamese workforce, because people may not have the knowledge or access to the tools needed to cope with their illness on their own.
This study attempts to answer the question: How do Vietnamese university students and
mental health professionals living in Hanoi perceive anxiety and depression? The goal of
answering this question is to provide the field with a more comprehensive understanding of
current views related to mental illness in Vietnam among experts and university students.
University students were chosen as subjects, for most of the research done previously, has
focused on high school students or older adults. There is a lack of information about the current
understanding and perceptions Vietnamese University students have regarding mental illness.
These students will enter the workforce in the next few years, and as they do, their notions will
shape the way Vietnamese culture views contemporary issues. Mental health professionals were chosen as an additional subject group due to their elite and knowledgeable status in the field and the cultural context of Vietnam. Many of the professionals interviewed have had experience providing mental health services in Hanoi for a long time and thus can add nuance to current perceptions of mental health, and its implications on Vietnamese people.
The data for this study was collected through a series of interviews within the city limits
of Hanoi, Vietnam. The interviews were transcribed and then coded using content analysis,
yielding quantitative and qualitative data. There has been little research done about perspectives of mental illness in Vietnam, so the goal of this study is to contribute a foundation for further research on perception of mental illness, such as correlational and causal relationships between it and Vietnamese culture. Based on existing research in the field, the Vietnamese public has a stigmatized view of mental illness, but minimal research focuses on the perceptions of university students and mental health professionals. Previous research done in the field focuses predominantly on the prevalence of mental illnesses or recent changes in government policy changes related to mental illness, instead of awareness and perception. This study intends to elaborate and extend upon the findings previous research, as well as gather new data regarding views of mental illnesses such as anxiety and depression, to understand how the findings apply to contemporary perspectives ...
The majority of research conducted in Vietnam related to mental illness in the last twenty
years, tends to focus on government policies related to mental health services, and although
policies are significant, they tend to be more reflective of the governments perspective towards
mental illness, rather than being reflective of the perspectives of the population. It is important to note this difference because this study focuses on the perception that local university students and mental health professionals in Hanoi have regarding mental illness, which are likely influenced by government policy but are not necessarily synonymous with it. Harpham and Tuan (2006) found that "using evidence to present mental illness as a ‘new problem' seems to have had some resonance in terms of shaping policy" (p. 665). Mental health policies regarding mental disorders other than schizophrenia and epilepsy were enacted in 2004 by the Vietnamese government; the policies place a lot of emphasis on a community-based system approach. A community-based system of mental health services is a system that is composed of mental health services based within smaller communities, that are specific to the needs of the community instead of large psychiatric hospitals (Greenhalgh, 2009). The community-based system "is responsible for mental health promotion, scanning, early detection and managing the treatment of mental disorders in the community. Moreover, the emphasis is put on patient follow-ups" (Vuong, et al., 2011, p. 67). Community-based structures of mental health services in communities have been linked to better mental health outcomes and increased satisfaction with their care among Vietnamese individuals (Greenhalgh, 2009, p. 18). Although Vuong (2011) and Greenhalgh's (2009) various studies on the policies and effectiveness of community-based mental health services in Vietnam are older, their conclusions still provide valuable insight into understanding government policies and structure ...
The results of this study provide initial research into the perspectives that local university
students and mental health professionals in Hanoi have regarding mental illness. It is clear that a stigma continues to linger and influence the way in which individuals, especially students, talk
about and perceive others who are struggling with mental illness. However, it is important to
note the complexity of perception. Many of the characteristics within perception and
stigmatization of mental illness within Vietnamese culture are interconnected. This study is not
representative of all the perspectives university students or mental health professionals in Hanoi, but instead provides initial insight into how mental illness is viewed gen[e]rally. The overall responses of both the university students and the mental health professionals interviewed suggests that the stigmatization of mental illness is interconnected to Vietnamese cultural values.
The cultural context of Hanoi, Vietnam may influence the students and the mental health
professional’s interpretation and perceptions individuals have regarding mental illness. The
assessment of correlational and causal relationships could not be explored between these
variables and perception of mental illness. Instead, this was an exploratory study of perception of mental illness and future studies could use the initial findings from this study to form hypotheses and design an experiment that could address that question.
Previous research done on stigma, has shown that culture is incredibly powerful in the
stigmatization of mental illness within a group (Abdullah & Brown, 2011). The results of this
study are in agreement with this finding even when comparing the answers of two very different
subject groups. Although the responses of the two subject groups are not directly comparable,
comparing the two does bring some interesting insight to the observations of each group. Student responses to interview questions revealed the lack of awareness regarding mental illness, that mental health professionals mentioned as a contributor to the negative stigma. Students at universities in Hanoi have a more progressive view of mental illness, than previous generations, but they continue to be heavily influenced aspects of Vietnamese culture that seemingly shame mental illness if one does not have a complete understanding of mental illness. The mental health professionals had a very progressive view towards mental illness and the importance that improved awareness will likely have on decreasing the existing stigmatization.
… Decreasing the stigmatization of mental illness will lead to individuals willingly seeking help. Individuals who seek help and receive proper treatment for mental illness are then able to continue contributing to society and the economy in meaningful and effective ways. It is not that changes need to be made to Vietnamese culture to decrease stigmatization, but instead an increased awareness and accurate understanding among individuals on how to address mental illness, its causes, its symptoms, and the way it manifests itself in individuals.
I have had regard to the following recent article[9] published by the Borgen Project:
Mental health in Vietnam carries a high level of stigma and taboo. In the Vietnamese culture, many believe that mental health is a misfortune. “Benh tam than” is the phrase that people use for mental illness in Vietnamese society and actually means madness or severe psychiatric disorder. Furthermore, psychiatrists in Vietnam are called “Bac si tam than,” which means “doctors who treat madness.”
This use of words shows that mental health carries a stigma — society considers individuals suffering from mental illness as “wild, unpredictable and dangerous people ” who are “daien” and “khung,” which translates to “crazy” and “nuts.” This stigma reflects the biases toward mental health in Vietnam and makes people suffering from mental health issues in Vietnam reluctant to seek help.
Vietnamese society often believes that negative circumstances, including illnesses, serve as punishments for previous sins. Many also believe that “angry ancestral spirits” possess people suffering from mental illness. Families often feel shame when a member of the family struggles with mental illness.
[9] “Improving Mental Health in Vietnam”, The Borgen Project, 5 June 2022,
I have had regard to the following article[10]:
… The comprehension of mental illness in Vietnam typically involves the acknowledgment of the dangers posed by life stress. A study comparing the perception of mental illness and its help services between Vietnamese students and U.S. students discovered that Vietnamese students exhibit a stronger stigma towards individuals with mental illness ... Due to the belief that people with chronic mental illness are capable of violence, there was a higher agreement in isolating them from the community in Vietnamese students compared to U.S. students. Vietnamese students were also more inclined to believe that stress and emotional shock from life struggles cause mental illnesses whereas U.S. students refer to chemical imbalance as the cause of mental disorders. The same study also showed that although Vietnamese students’ understanding of the elements leading to mental illness was practical, their stigma of people with mental illness remained strong.
Vietnamese people acknowledge that the occurrence of mental illnesses is a combination of internal and external causes, and family plays a central role in their treatment ... A focus group research investigated further into Vietnamese perceptions of mental health suggested that depression and schizophrenia are the most identifiable mental illnesses among respondents .... The participants attributed depression to family problems, excessive studying and ruminating while they associated genetic, work and love with schizophrenia ... Additionally, they considered socially disruptive behaviors, for instance, manic laughing and wandering, as incredibly severe symptoms of mental illness. From their perspective, this type of actions must receive care from mental facilities, yet family care is adequate to treat other mental illnesses. Participants’ belief in the family’s role as the cause and treatment of mental illness reflect its significance in Vietnamese limited understanding of mental disorders.
The stigma of mental illness not only results in an unwillingness to assist people with mental disorder, but it also highlights incomplete comprehension of its definition. Stigma has been shown to prevent Vietnamese children affected by Autism Spectrum Disorder (ASD) from accessing essential services in a study investigating how their parents navigated ASD stigma ... ASD stigma manifests in the mainstream media’s hesitance to acknowledge ASD as a disorder (rối loạn phổ tự kỷ), rather than a disease (bệnh tự kỷ). Its reluctance to apply the term disorder (rối loạn) misrepresents calming behaviors such as constant talking and hand-waving usual for children with ASD as abnormal and socially troublesome. Thus, school and medical services may not offer them adequate support, leaving many parents of children with ASD to turn to each other for homeschooling and therapy.
People with complex mental health issues spend their lives dealing with stigma particularly from their relationships, social media, employment, and care services. The 2020 annual report on national stigma surveys Australians who had experienced mental disorders found that 70% of participants have trouble making and maintaining relationships due to stigma and discrimination ... Additionally, they found those who had experienced mental disorders have a tougher time applying for work opportunities, finding physical and mental support, and participating in education and training because of stigma and discrimination. Surveyees stressed the importance of education about complex mental health issues, people’s respect towards them and acceptance in support services as ways to reduce stigma. The report bears resemblances to the situation of people with mental illness in Vietnam whose fight for visibility and access to support services and education is still very much challenging.
Nonetheless, Vietnamese people’s stigma of mental illness can be deterred through anti-stigma intervention. An example of an anti-stigma intervention highlights positive aspects of people with mental illness and their treatment progress is the ethnic media project known as Tam An in the Vietnamese immigrants’ community in the U.S. ... By providing information about mental illness in Vietnamese, the project has increased awareness of mental illnesses and the willingness to seek psychological help in the community. The effectiveness of the campaign relies on numerous factors, such as the frequency and cultural relevance of the content, and the connection building to community members to spread the message on multiple media (i.e. social media, radio). Although the positive impact of Tam An is not quite widespread, the project can be a future model for combating stigma in Vietnam.
Despite Vietnamese’ improved awareness of mental disorders that shift to a more nuanced explanation, the stigma is still rooted in insecurity towards community disordering. Without a comprehensive resource to explain mental illness to people, the stigma will continue to negatively affect those who live with them. However, with an anti-stigma intervention that aims to spotlight the positive impacts of the psychological recovery of people with mental disorders, there will be greater sympathy for them. For the intervention to be effective, members in the community must build a commitment to raise awareness of matters relating to their mental health. Even though the community can reinforce stigma and discrimination that exclude people with mental illness, the community can also welcome them and progress their healing.
[10] Nguyen Nam, “How do Vietnamese mental illness stigma affect people living with them?”, Medium.com, 28 December 2020, ; This article extensively cites academic studies, including Van der Ham, Lia, Pamela Wright, Thang Vo Van, Vuong DK Doan, and Jacqueline EW Broerse, “Perceptions of mental health and help-seeking behavior in an urban community in Vietnam: an explorative study” Community mental health journal 47, no. 5 (2011): 574–582.
I note that in [the applicant]’s case, there is no evidence of any support in this matter from his immediate or extended family in Australia. Having regard to the independent evidence about traditional Vietnamese attitudes to schizophrenia in the family, it is not unreasonable to infer that [the applicant]’s family has to a substantial extent distanced itself from him, leaving him to fend for himself. I would not expect his relationships with extended family members here or in Vietnam, if he even has any there any more, to be any different.
The reference to the nuns led me to an article[11] about some sisters in an order known as the Daughters of Our Lady of the Visitation who operate in the province of Thua Thien Hue in South Central Vietnam, which is a long way from where [the applicant] previously lived in and around Hai Phong in the far north. Interestingly, the nuns reported terrible mistreatment of people with mental health disorders by families and institutions, not necessarily motivated by an intention to harm, but easily attributable to fear and stigmatisation:
[11] “Vietnam Catholic nuns support people with mental illness: Many of those with psychiatric disorders are either kept in chains at home or abandoned by relatives” UCA News, 1 May 2023,
Le Van Hoat cleans his house and does the washing on a daily basis, simple tasks he could not perform for many years in the past.
In his old T-shirt and shorts, with a pensive expression on his face, the 50-year-old single man from Hue, the capital of Thua Thien Hue province in South Central Vietnam, would rarely speak, except for saying "thanks" to those who visited and offered him food and gifts.
Hoat, whose parents died years ago and has no siblings, has suffered from a mental disorder for the past 20 years.
“My health is improving gradually thanks to the Catholic nuns who care for me,” he says.
Social worker Sister Mary Le Thi Thu Huong of Daughters of Our Lady of the Visitation recalled meeting Hoat in December 2022 while she along with some lay volunteers was offering Christmas gifts to local people in need.
Hoat bowed to them with his hands folded and asked for cigarettes.
Huong and two other nuns from her congregation began visiting him regularly. They even helped reconnect the power supply to his house.
“We try to do something useful for his physical and mental health, like talking to him daily besides giving him food, medicines, and clothes, and also teaching him to do the housework,” Huong said.
The nun is happy that Hoat is gradually returning to normal behavior and has learned basic tasks like cleaning and washing.
Earlier, the neighbors used to avoid him for fear of being attacked but now treat him with respect and also help him.
Hoat’s relatives said he was diagnosed with a mental problem in 2003 after suffering severe brain trauma in a road accident. Since they could not afford his medical care he was left to fend for himself.
Hoat, who used to catch fish in the river for a living, began to wander aimlessly on the streets and eat leftovers at the local bistros.
He would sleep in the market, and whenever he had a seizure would shout at people, and tear at his clothes. As a result, no one dared to go near him.
The province of Thua Thien Hue in 2022 recorded 4,895 cases of schizophrenia, epilepsy, and depression, of which 450 patients were kept at a center for homeless people.
The Health Ministry reported last year that cases of mental disorders were on the rise and the country recorded nearly 15 million patients, accounting for 15 percent of its population.
Huong said her congregation gives allowances of one million dong (US$42) per month to 17 psychiatric patients including Hoat as a way to stave off their hunger and undernourishment.
Most of them become mentally ill after losing loved ones, or due to a brain injury or because of genetic reasons. Some live with their relatives while many are abandoned by their families and wander the streets alone.
“We also encourage their relatives to spend time tending, listening to, being with, and comforting them because they will only be healed if they get affection from their family members,” the nun said.
Lovers of the Holy Cross Sister Marie Truong Thao from Caritas in Hue archdiocese said Caritas workers, including five sisters from three congregations, help 50 mentally ill patients on a monthly basis in Thua Thien Hue province.
Many of them are former prisoners, drug abusers, and in the case of women, have had abortions and suffered domestic violence.
Thao, who has a degree in social work, said many live alone and those living with relatives have their legs chained inside the houses.
It is mostly out of fear that the mentally ill may cause them physical harm. Hence, Caritas workers educate family members about how to care for them.
Thao recalled her first meeting with 24-year-old Do Thi Oanh at her home in Hue in 2018.
Oanh stared at her in anger from inside her four-meter-square room which emitted a foul odor. She was disheveled and in bad shape.
Her parents, who are Confucians, assumed she was in demonic possession and paid 50 million dong (US$2,130) to a local shaman to heal her. But her illness only got worse.
“I smiled at her, touched her hands, and talked with her for a short while. Then I washed her hair and changed her clothes. She’d not been attended to for nearly a year,” the nun, who looks after Oanh on a weekly basis, recalled.
It took several months to change her behavior. “She slowly became friendly to me but is still very quiet,” the nun said.
However, Oanh learned to wash and arrange her hair, sweep the floor, be gentle with others, and no longer scream in fear.
Meanwhile, in another part of the city, Hoat is showing remarkable progress.
He calls the nuns and others who regularly visit him by their names.
The 50-year-old, who is not a Catholic, expresses his gratitude to the nuns.
“I wish the worst is over soon and I can do something for a living,” he says while sitting and sipping tea in front of his modest house.

I have not been able to find any evidence of similar initiatives in Vietnam’s north, where there is traditionally a significantly smaller Catholic population and, therefore quite likely, far fewer Catholic sisters based there.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[13]
[12] MIMA v Rajalingam (1999) 93 FCR 220 .
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[14] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[15]
[14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[15] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that [the applicant] is a Vietnamese national who was selected for resettlement in Australia out of Hong Kong under the 1989 CPA.
I accept that [the applicant]’s father was jailed in the 1980s for the reasons stated. As noted, I have difficulty accepting that he escaped in the manner described, but even if I do accept it, I give more weight to [the applicant]’s evidence of the Vietnamese police having ceased pursuing his father, mother and family members at least since receiving confirmation of his father’s decease.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted by state or non-state agents in Vietnam for reasons of his father’s criminal profile; his father’s possible political profile; or his family’s potentially unfavourable political background. I give weight to the fact that “unfavourable political background” ceased attract “re-education” in Vietnam in the 1990s when economic reforms were aimed at reanimating Vietnam’s lost culture of entrepreneurship.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Vietnam for reasons of his having departed Vietnam illegally, as he was only a minor at the time and there is plenty of evidence to the effect that Vietnam does not punish illegal departures even in adults unless they are found to have been the organisers of such ventures. I give weight here to Vietnam’s evident honouring of undertakings it gave under the 1989 CPA regarding illegal departures.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Vietnam for reasons of his having sought asylum abroad, again not least because he was only a minor at the time and there is plenty of evidence, even in [the applicant]’s descriptions of aunts and uncles visiting Vietnam, to the effect that Vietnam does not even punish adults who are former asylum seekers. Here I also give weight to Vietnam’s evident honouring of undertakings it gave under the 1989 CPA regarding persons who sought asylum in countries abroad.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Vietnam by way of re-prosecution or “double jeopardy”.
I accept that [the applicant] suffers from schizophrenia. The evidence of anti-social behaviour arguably indicates that he was probably already suffering symptoms of paranoid schizophrenia by [Year] when he was found guilty of assaulting his classmate. It is worthwhile observing in the circumstances that if this first offence, treated at the time as a minor one, was the “character” issue that prevented him in the eyes of the Minister’s delegate from being granted citizenship in [Year], then it is hard not to feel that he was treated shamefully. [The applicant] was likely already schizophrenic. Schizophrenia is a mental illness. Schizophrenics warrant care. It is hard to see on the facts that [the applicant]’s mental health was factored into the refusal to grant him citizenship, and even if the evidence of schizophrenia was not already diagnosed at the time, the offence that attracted the blunt character assessment in [Year] was so minor as to be expiated merely by serving 100 hours of community service. It is hard to understand, on the facts before me, how that was enough to lead to refusal of a citizenship application at that time. After this institutional shunning, arguably mirroring reported Vietnamese societal attitudes to mental health issues, it is no surprise that he continued anti-social activities such as drug abuse, break-and-enter and outbursts of violence.
However, this review must necessarily be forward-looking.
On the evidence before me, I am satisfied that “persons with serious mental health issues” including “people with schizophrenia” are cognisable groups in Vietnam. The suffering that such people are symptomatically liable to sustain, such as though paranoid delusions, self-harm and suicidal ideations, in no way invalidate either “persons with serious mental health issues” or “people with schizophrenia” as a “particular social group” for the purposes of this jurisdiction. There is sufficient evidence of exogenous and discriminatory harm affecting these groups (intentionally or not) for me to be satisfied that membership of either or both groups meets the “membership of a particular social group criterion in s.5J(1)(a) of the Act.
Further to the above, I am satisfied that [the applicant] is a member of both of these particular social groups. I also find that his membership of both groups is likely permanent and immutable even with the best treatment available.
Does [the applicant] face a real chance of being persecuted in Vietnam for reasons of his membership of either of these groups, or of any other similarly characterised one? For the reasons that follow, I am satisfied that he does.
In reaching my decision, I am helped by the delegate’s locating of recent and relevant reporting on the kinds of state-subsidised treatment established throughout Vietnam at local and provincial levels for people with mental health problems including schizophrenia. There is obviously a willingness on the part of the state and a professionally-qualified sector of society to provide treatment that, at least in principle and probably in many individual instances in practice, could assist people like [the applicant] with treatment to ameliorate schizophrenic symptoms. Where my views on this material differ from the conclusions of the delegate has to do with the additional evidence I have located regarding social stigma, including stigmatisation by families, and the potential of this form of discrimination not only to impede access to treatment, but in demonstrable instances to restrict and endanger people with schizophrenic symptoms.
On the evidence before me, action or inaction due to social stigmatisation and common misunderstanding of schizophrenia in Vietnam has the potential to amount, at least cumulatively, to persecution. That said, I am conscious of the need to avoid making findings that are based purely in or around bald speculation.
In Chan v MIEA, it was recognised that persecution has traditionally taken a variety of forms of social, political and economic discrimination. Justice McHugh in Applicant A v MIEA, observed that:
Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.[16]
[16] Chan v MIEA (1989) 169 CLR 379 at 430
It is also well established that it is not necessary that the conduct feared should be directed against a person as an individual. Harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, can amount to persecution if done for a reason given in s.5J(1)(a) of the Act.
Under s.5J(4)(b) of the Act, persecution must involve “serious harm” to the person. S.5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define “serious harm” but provide instances of the serious harm referred to in s.5J(4)(b) by way of an aid to their application. The following are listed as instances of “serious harm”:
(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.
In Chan v MIEA, Mason CJ held that serious punishment or penalty, or the imposition of some significant detriment or disadvantage, “for a [1951 UN] Convention [and 1967 UN Protocol relating to the Status of Refugees] reason”, as the Australian law stood at the time, will amount to persecution and that harm short of interference with life or liberty may still amount to persecution. His Honour stated that:
…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage ... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ...
In the same case, McHugh J stated:
…to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution.
…the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.
In MIMA v Haji Ibrahim[17], McHugh J emphasised the degree of harm that would be required to constitute persecution. His Honour explained:
[17] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55]
Protection visas are for protecting people from persecution, not discrimination. Meanwhile, not all infliction of harm for a s.5J(1)(a) reason necessarily involves persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a s.5J(1)(a) reason, will invariably constitute persecution for the purpose of the Act. However, the infliction of many forms of economic harm and the interference with many civil rights may not necessarily reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.
While noting that it would be impossible to frame an exhaustive definition, his Honour described persecution for the purpose of s.5J(1)(a) as, ordinarily:
·unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason
·which constitutes an interference with the basic human rights or dignity of that person or the persons in the group
·which the country of nationality authorises or does not stop, and
·which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.
I note that that McHugh J's fourth dot point suggests a threshold for persecution that is arguably higher than the statutory “serious harm’ test under s.5J(4)(b) as elucidated in s.5J(5).
In AGA16 v MIBP [2018] FCA 628 at [35], the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. It found that this proposition was consistent with the observations of the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153], where it was emphasised that an evaluation of “serious harm” will be a question of fact and degree, often complicated and quite specific to the individual concerned.
An applicant’s personal circumstances would be relevant to whether the forms of economic harm or denial to services mentioned in those sections “[threaten] the person’s capacity to subsist”. The Department’s own Refugee Law Guidelines, as re-issued on 27 November 2022, state that an applicant’s personal attributes are relevant in determining whether harm amounts to “serious harm” under s.5J(4)(b) of the Act. However, Further, s.36(2)(a) of the Act does not encompass the harm an applicant may suffer as a result of an illness arising on return to his or her receiving country.[18]
[18] CSV15 v MIBP [2018] FCA 699 at [31] and [34]
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression “systematic conduct” in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random[19]. His Honour held that:
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”. [20]
[19] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]
[20] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99]
The question of whether certain conduct is “systematic” is distinct from the qualitative assessment which is required to determine whether conduct amounts to “serious harm”. In VSAI v MIMIA, Crennan J stated that where conduct shown to be serious harm is assessed as to whether it is “systematic conduct” for the purposes of the Act, it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. It would not be necessary to show that the conduct is widespread or frequently recurring. However, her Honour observed that frequency or regularity may be relevant to determining whether conduct amounts to “serious harm” if the isolated incidents can be described as involving minimal or low level harm. Similarly, the Full Federal Court observed in SZTEQ v MIBP that “systematic” is used in the Act in the same way that “discriminatory” is used, being to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.
The statutory test in s.5J(4)(c) is understood not displace the general proposition that a single act of harm may suffice, as long as it is part of a course of systematic (in the sense of non-random) conduct. It is also understood that, while Haji Ibrahim predates the enactment of s.5J, it remains law insofar as the meaning of “systematic” is concerned. The term “systematic” in s. 5J(4)(c) should therefore be taken to mean “non-random” in the sense of being deliberate, pre-meditated or intended. It is not necessary that conduct be regular, organised or methodical.
Although persecution necessarily involves an element of motivation on the part of the persecutor, and will often be motivated by enmity,[21] it is wrong in law to require an attitude of “enmity” or “malignity” before persecution can be made out.[22] In Chen Shi Hai v MIMA, the High Court agreed with both the trial judge[23] and the Full Federal Court[24] that antipathy, although commonly present, was not a necessary component of persecution. The High Court’s joint judgment stated that:
Persecution can proceed from reasons other than “enmity” and “malignity”. Indeed, from the perspective of those responsible for discriminatory treatment, it may result from the highest of motives, including an intention to benefit those who are its victims. And the same is true of conduct that amounts to persecution for a Convention reason.[25]
[21] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72].
[22] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61]. While the words ‘enmity’ and ‘malignity’, or ‘hostility’, appear in some dictionary definitions of persecution (see for example the Oxford English Dictionary (2^nd edition, 1989, vol 11), as cited by Gummow J in Applicant A v MIEA (1997) 190 CLR 225 at 284; also the Australian Concise Oxford Dictionary (Oxford University Press, 3^rd edition, 1997), and the New Oxford Dictionary of English (Clarendon Press: Oxford, 1998), these notions have not been carried forward into some of the modern dictionaries (for example the Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 2001). Indeed, Kirby J, although acknowledging his own reliance on dictionaries in Chen Shi Hai v MIMA (2000) 201 CLR 293 at 312, has cautioned against using dictionary definitions of the word ‘persecuted’ in the Convention definition: see MIMA v Khawar (2002) 210 CLR 1 at [108]
[23] Chen Shi Hai by his next friend Chen Ren Bing v MIMA (Federal Court of Australia, French J, 5 June 1998)
[24] MIMA v Chen Shi Hai (1999) 92 FCR 333
[25] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [35], confirmed in Applicant S v MIMA (2004) 217 CLR 387 at [38]. See also ChenShi Hai at [63] where Kirby J agreed with the primary judge that: ‘the attribution of subjective emotions such as “enmity” and “malignity” to governments and institutions accused of persecution “risks a fictitious personification of the abstract and the impersonal”. Some of the most fearsome persecutions of people on the grounds of race, sex, religion, sexuality and otherwise have been performed by people who considered that they were doing their victims a favour. Persecution is often banal.’

Nevertheless, although it would be wrong to impose a requirement of “enmity and malignity”, there remains a need to show that the persecution is motivated by one or more of the five grounds.[26]
[26] See the Full Federal Court’s discussion of Chen Shi Hai in MIMA v Khawar (2000) 101 FCR 501 at [141], [26], [71] and [77]. See also Hagi Mohamed v MIMA [2001] FCA 41 at [15]
In this case, there is no evidence before me, nor does there appear to have been any before the delegate, to suggest that authorities in Australia would ensure that [the applicant] is handed over to competent and appropriate medical authorities in Vietnam in the event of his removal there, the better to ensure continuity of his current treatment, nor is there any clarity as to what treatment he would go on to receive. I therefore proceed on the basis that [the applicant] re-enters Vietnam on his own and has to fend for himself.
At this point I repeat that [the applicant] presents not only as a person with schizophrenia. At the hearing, he presented with visible tics and involuntary halts and other impediments to his speech, such that he may also have some long-term brain damage. This of course is just an empirical, lay impression, and would better be left to appropriate professionals to assess, but it is nevertheless relevant in my consideration as to how he would fare trying to avail himself of protection from being persecuted in the event of removal to Vietnam. I am in no way confident that [the applicant] would have the social acuity or intellectual capacity to be able to situate himself within Vietnam’s mental health care regime without the assistance and support of others.
The independent evidence before me indicates that while seemingly appropriate mental health treatment exists for people with mental health problems in Vietnam, including in [the applicant]’s own province, there is no evident suggestion that the state goes out to find persons in need of such help. The example of what the nuns have found in Southern Central Vietnam provides an example of the importance of sensitive, attuned and educated family members. Much evidently depends on the community at large and its attitudes to people with mental health problems. On that subject, the evidence of prejudice and stigmatisation in Vietnamese society towards persons with mental health needs including those with schizophrenia is very strong, and common and pervasive enough not to be passed off as something random.
In [the applicant]’s case, I have already found on the evidence of numerous maternal and paternal aunts and uncles living here in Australia, that he likely has few if any known, let alone close relatives left in Vietnam. Given that those relatively “closer” to him would be of his parents’ generation, and recalling that his own father for one is long dead, the prospect of his having any meaningful acquaintance with any relative in Vietnam appears remote. This is relevant to [the applicant]’s protection prospects because it becomes hard to conceive that he would have any potentially viable social support network in Vietnam. Accordingly, [the applicant] will not have any family to help him access mental health care in Vietnam. There is no reason for me to imagine that some nice nuns will find him and help him just in time. There is sufficient evidence before me indicative a real chance that the evident prejudice, misunderstanding, discrimination and social stigma in Vietnam isolating and shaming people with conditions such as schizophrenia, and their families as well, will prevent [the applicant] from being able to access medical or subsistence care there. This means that his prospects of survival in Vietnamese society are grim. These findings are made having particular regard to principles long-settled by our courts: serious harm, amounting to persecution, may include significant economic hardship that threatens the person’s capacity to subsist; it may involve denial of access to basic services, where the denial threatens the person’s capacity to subsist; discrimination and prejudice giving rise to serious harm need not involve “enmity” or “malignity”; such factors as an individual applicant’s health, age and frailty as well as personal vulnerabilities, are relevant in the consideration of what may amount to serious harm.
There is no evidence before me to suggest that [the applicant] will be the beneficiary of the kind of positive intervention demonstrated by the nuns in Southern Central Vietnam. Although he demonstrated awareness of and interest in what they do, I consider that [the applicant] is too vulnerable and mentally frail to avail himself of such intervention. I am not satisfied that he can avoid serious harm by relocating, such is the evidence of the pervasiveness in Vietnam of stigmatisation and misunderstanding regarding mental health problems. I am not satisfied on the evidence before me that [the applicant] will be able to avail himself of effective state protection from the serious harm he faces due to stigmatisation of his mental health condition. This is notwithstanding the existence of state-provided services for persons with special mental health needs in Vietnam. It all comes down to the stigma that will prevent [the applicant] coming into contact the state before and unless some otherwise preventable serious incident or social disturbance is reported.
On the evidence before me, the chance of [the applicant] facing serious harm for reasons of his membership of the particular social groups characterised above is not remote. I am satisfied that he faces a real chance of being persecuted, at least cumulatively, in Vietnam in the reasonably foreseeable future for one of the five reasons cited in s.5J(1)(a) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
S.36(3)
I am satisfied that [the applicant] is unable to avail himself of the protection of a third country. He is not caught be s.36(3) of the Act.
In passing
There remains, likely, the issue of “character” in a matter like this, and that this issue is one for the Minister, not the Tribunal.
I am aware of s.501(1) of the Act, which says:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
I am aware that under s.501(6) of the Act, a person does not pass the character test if:
(a) the person has a substantial criminal record …
[The applicant] does have a criminal record. It is for the Minister to form a view as to how substantial it is. [The applicant]’s history of mental health problems, possibly long undiagnosed, may or may be a relevant mitigating factor in such a consideration I draw attention to the possibility that [the applicant] also may be impacted by some brain damage, such as can be caused by a stroke. Meanwhile, [the applicant]’s evident compliance with the medical treatment he now receives may or may not be a factor in assessing risk of danger to the Australian community or part of it.
With all due respect, the Tribunal draws the Minister’s attention to his power under s.501(1) being a discretionary one, and in no way mandatory.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Luke Hardy
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.
…

for Indochinese Refugees’, International Peace Institute, DESPERATE MIGRATION SERIES NO. 2, October 2016

[2023] AATA 4138

25 August 2023

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