2315119 (Refugee) - [2025] ARTA 1727

2315119 (REFUGEE) [2025] ARTA 1727 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Nguyet Doan (MARN: 1795946)
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2315119
Tribunal:General Member A Goldsworthy
Date:1 July 2025

Place:Perth
Decision:The Tribunal affirms the decision under review.

Statement made on 01 July 2025 at 4:38pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – separated woman – marriage and separation but not divorce in Australia – verbal and emotional abuse – mental health – fear of harm from husband’s family and social stigma – no recent contact with husband or his family – religion – member of registered Catholic church – family’s church forcibly closed for a period – lack of work opportunities and financial circumstances – country information – level of stigma and emotional harm accepted but not serious or significant – possibility of applying for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
SCAT v MIMIA [2003] FCAFC 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old female national of Vietnam. She applied for the visa on 13 April 2023. The delegate refused to grant the visa and the applicant appealed to the then Administrative Appeals Tribunal.
The applicant appeared in-person before the Administrative Review Tribunal (the Tribunal) on 30 June 2025 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s protection claims as detailed in her visa application form are summarised below.
She will be looked down on by Vietnamese society for returning to her parents because of her failed marriage in Australia. This will be a major embarrassment to her family. She will not have anywhere to live other than her parents’ home because she does not have money to buy or rent a place as she would not have a job. Her parents will be sad and angry and she could not bear to witness them facing the ostracism and stigma of people in the neighbourhood and society. Her brothers and their families would blame her for causing problems and so she did not think that she could live with her parents. She does not have any formal qualifications so will not be able to apply for high paying jobs and would therefore not be able to afford a normal standard of living. She will be vulnerable and an easy target for organised crime networks and illegal money lenders and fall into prostitution. She will face serious financial hardship and the government will not help her as they are corrupt and will charge and arrest her if they found that she was involved in prostitution. After release, she would have to pay bribes or give sexual favours. It is unlikely that she will remarry, so she will be upset and will move to other parts of Vietnam where no one will know about her history. Her mental health has deteriorated and it will be hard for her to get treatment in Vietnam.
The applicant provided the Department with ID including a copy of her passport bio-page. The applicant was not interviewed by the Department.
The delegate refused to grant the visas on the basis that:
a.they were not satisfied that the applicant was a refugee as defined in s5H(1) of the Act; and
b.they were not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there was a real risk the applicant would suffer significant harm.
On 4 June 2025 the completed pre-hearing information form was filed along with updated claims for protection that were substantively similar to those in the applicant’s protection visa application form.
On 23 June a written witness statement and a written personal statement were filed. On 27 June a psychologist’s report was filed.
On Saturday 28 June the representative filed her own written submission.
In her written submission and at the hearing on Monday 30 June, the representative sought to provide written post-hearing submissions. As no new issues had been raised during the hearing and as the representative had every opportunity to file submissions ahead of the hearing, the Tribunal denied this request but invited oral submissions at the end of the hearing. During those oral submissions the representative requested the Tribunal’s referral for Ministerial Intervention.
The Tribunal will not be referring this matter for Ministerial Intervention but the applicant is free to do so by her own volition.
Relevant evidence from submissions and oral evidence is included below.
Vulnerability
In light of the psychologist’s report filed by the representative, and with reference to the Tribunal’s Guidelines on Vulnerable Persons, I asked the applicant whether there was anything that could be done to assist her to fully participate in the hearing. She said that as long as our conversation went smoothly she would feel safe. I had regard to this throughout the hearing.
Background
The applicant was born and raised Catholic in Vung Tau, Vietnam, where she lived until she moved to Australia in 2014. She has [brothers], all of whom are married and live in Vung Tau, and her parents also remain living together there in a home that they own. The applicant is very close with her family and they speak daily.
The applicant is a practicing Catholic. She attends Mass weekly and if she is able, daily, and she partakes of the Eucharist. Her practice is no different to what it was when she lived in Vietnam where she attended a church that was registered with the Vietnamese government. She said that she had never attended an unapproved church.
The applicant finished high school and worked as [an occupation 1] and in [sales] prior to leaving for Australia.
The applicant’s parents own and run a small stall at a market. [Some] of her brothers work in the [work sector 1] and one works [doing a job task]. Her [other] brother is unwell and does not work.
The applicant first came to Australia in 2014 and was married soon thereafter to an Australian citizen from Vietnam. She started the process for a partner visa. She said that the first few years of marriage was fine but that he and his mother began verbally and emotionally abusing her after that. She said she left him and their home in 2019 and has not returned. She has had no contact with him or his family since that time and she has lived alone since then.
Her family are aware that the applicant is separated from her husband and are aware of the verbal and emotional abuse she experienced from him and his mother prior to her moving out of their home in 2019. When the applicant told them they had been shocked and upset. She said that they worry about her as she lives alone and has no one to protect her.
Since having been in Australia the applicant has worked as [an occupation 2], on a [workplace 1]], as [an occupation 3], in [work sector 2], and currently works at [a workplace 2].
I accept the above ‘background’ claims.
When asked where she would live if she were returned to Vietnam, the applicant said that she might live in Dong Thap which was about four hours from her hometown. She said that it was where her sister-in-law was from and she had told her that it was better and ‘more natural’ than Vung Tau.
Being Catholic
When asked why the applicant was claiming protection, she said that she was not protected in Vietnam. When asked to expand on this, the applicant said that if something happened to her the authorities would not protect her, for example if she was violated. When asked why she would be violated she said that it was because she was Catholic and Catholics were not protected there.
The applicant said that the Communist Party had, for a period, not allowed activities at her church. She said that people were not allowed to attend church or have ceremonies. When asked to expand on what activities were not allowed, she said the Communist Party did not like Catholicism and Catholics would not be given high government positions; they could only have lower positions.
When prompted to provide more detail on the period in which this had happened, the applicant said that it was three years ago. The Tribunal noted that she had been in Australia at that time. The applicant agreed but said that her family had told her that they had been unable to attend church. When asked what reasons they had been given, the applicant said that the government had told them that Catholicism caused a lot of ‘noise and disorder’. She said everything was okay now but her family had been unable to attend church for 6 months. When asked again why this had occurred, the applicant said that ‘they’ had been promoting Catholicism and the government had not liked that.
The Tribunal put country information to the applicant that Catholicism was a recognised religion with legal status in Vietnam. As at the 2019 census, 6.1% of Vietnamese identified as Catholic, which translated into approximately 6 million people.[1] Furthermore, while authorities monitored Christian church leaders closely, sources were not aware of family members of church leaders being threatened.[2] The Tribunal further put to the applicant that there was no information before it to suggest that people who attended Mass as worshippers would be threatened.
[1] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.31], [3.33], [3.54].
[2] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.51].
The applicant reiterated her earlier comment that there had been a period where her church was propagating Catholicism and the government had not liked it. The Tribunal observed that she had never claimed to have proselytised but only to have attended Mass, so why did this concern her? The applicant said that attending Mass was part of propagating the faith.
She said that during the period when they had not been allowed to attend church she had been frustrated. The Tribunal noted again that she had been in Australia at the time this was alleged to have happened. The applicant agreed but said that her family had been impacted.
The Tribunal put further country information to her, that Catholics were free to congregate, worship and display religious iconography at registered religious sites, and were free to possess Bibles and to evangelise within their registered area of operation.[3]
[3] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.53].
The applicant agreed and had nothing to add to this.
Finally, the Tribunal put to her that Catholics did not generally face societal discrimination and physical harm because of their religion, and that state protection was available where needed.[4]
[4] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.58].
The applicant commented that Catholicism was discriminated against by the government. When invited to say more about this, she said that the Communist Party discriminated against Catholics and that was why they had been unable to attend Mass for a while a few years ago.
Husband’s family
The applicant said that she was afraid that if she saw her husband again he would attack her. When asked why she thought he would do this, she said that because she left the house they might attack her again as they thought she had scammed them. The Tribunal asked when he had last attacked her and she clarified that it had only been verbal, though he had thrown her things around. She did not report it to anyone.
When asked to elaborate on what he had thrown and where he threw it, the applicant said that he threw things to scare her, but did not elaborate further.
The applicant said that she had not divorced her husband yet for three reasons.
First, she said that she was concerned that if she submitted the divorce papers her visa would be cancelled and she would be returned home.
Second, her husband would do something to her and he would not forgive her about returning to Australia in 2020 without letting he and his family know. When asked to expand on this, the applicant said that the family did not like her so she was worried that he would hit her.
The Tribunal put to her that he had never done so in the past so why would he seek to do so in the future? She said it was because the family felt that she had scammed them; they had brought her to Australia for marriage and then she had left her husband. She said she knew they felt this way because when she left him she heard from her cousin that they would not forgive her.
The Tribunal put to her that she had left him over five years prior and nothing had happened, so why would anything happen in future? The applicant said that his family still hated her.
The third reason she had not divorced her husband was that she could not afford the fee for the divorce application.
The applicant said that her husband’s family knew she lived in Vung Tau so if she returned there they might find out and if they did, they would ‘do similar things’ as they had done in Australia; they would have her beaten up.
The Tribunal put to her that being beaten up was not similar to what she said had happened here as no one had ever beaten her. The applicant said that it was a possibility. When asked what she based this on, she said it was because they hated her because she had left the house and the family.
Being a separated woman
When asked again about why the applicant could not return to her hometown of Vung Tau, she said that it was because she was a separated woman and she was concerned that she would be mocked by neighbours and friends.
The applicant also said that because she was separated it would be hard to find a job at her age and with her lack of qualifications. She said that her family could not support her and she would have to find a job elsewhere or overseas to cover her expenses. She said that this was a key factor for falling into the hands of human traffickers, especially at the border.
The Tribunal put to her that it seemed quite a stretch that she would return to Vietnam and subsequently fall into the hands of human traffickers.
The applicant explained that it was because she would have to find a job and she would be unable to find one where she lived so would have to look overseas. The applicant also said that she may need to borrow money from loan sharks.
The Tribunal put to her that this seemed purely speculative, and asked why she would borrow money from a loan shark; had her brothers ever done that?
The applicant said that it was just a reality and while no one in her family had borrowed from a loan shark, her friends had been in that situation.
With reference to the applicant’s claim that she may fall into prostitution, she explained that this might happen if she needed money. She also said that she might turn to a human trafficker if she was desperate and needed money.
The Tribunal put to her that she was premising her speculations on her not having a job and asked why she was assuming she would not have work when Vietnam had a low unemployment rate. The applicant said that she was old and employers only accepted younger people with qualifications.
The Tribunal invited comment on country information that Vietnam’s unemployment rate had for a long time consistently been low, ranging between 2 and 3 per cent. Many people who had been laid off since 2023 had found alternative employment, and the projected unemployment rate in 2025 was 2 percent.[5] The Tribunal said that there was no information before it to suggest that the applicant would have trouble finding work that would sustain her.
[5] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [2.20].
The applicant said that she disagreed and that the unemployment rate was high. She said she knew this because her friends and people around her had told her it was hard to find work.
The Tribunal observed that they had nonetheless been able to survive. The applicant said that they had to do other jobs such as in [an] industry just to make ends meet.

The Tribunal also put to the applicant country information that around one-third of women aged 15 to 49 were not married as at 2023, and there were no legal barriers to being a single female-headed household.[6] Further, while single women may attract stigma, especially in rural areas,[7] her hometown was not rural.
[6] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.121].
[7] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.122].
The applicant agreed that her hometown was not rural but said there was still a lot of stigma.
The Tribunal put further country information to the applicant, that divorce was increasingly common and accepted in Vietnam, particularly in cities, and community attitudes to it had shifted. Where it existed, stigma was most likely to take the form of family shame and family ostracism, though it could also have economic consequences. Stigma did not generally translate into physical harm.[8]
[8] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.126].
The applicant said that in her hometown people would gossip about her being separated and she could not stand that.
Effect on mental health if returned
With reference to the applicant’s claim that she would not get the mental health help that she needed in Vietnam, the Tribunal asked what kind of help she would be seeking if returned.
The applicant said that she would want to see a psychologist but the quality available in Vietnam was not good.
I observed that she had not had any treatment for her mental health in the more than five years since she left her husband and it had only been a very recent development.
The applicant said that her marriage break-down had made her emotionally unstable and she wanted to have psychological treatment but economic conditions would not allow it.
The Tribunal noted again that five years had passed since her marriage breakdown.
The applicant said that her representative had instructed her to see a psychologist and thanks to that she could relieve the stress from her marriage breakdown.
The Tribunal invited the applicant’s comments on country information that according to Vietnam’s Ministry of Health, mental illness affected 14 per cent of the population in 2023, and publicly funded mental healthcare services were available in urban and rural areas, although limited in the latter. While there were some out-of-pocket costs for users, these were generally minimal and affordable [9]
[9] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [2.54], [2.55].
The applicant said that mental health in Vietnam was not given the degree of attention that it was in Australia. As far as the applicant knew, she would have to pay a lot to see a psychiatrist and the services were poor compared to Australia.
Findings of fact and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal found much of the applicant’s evidence to be vague and generalised, despite being given every opportunity to provide more detail. My findings below reflect this.
Harm from husband’s family
I accept that the applicant had problems with her husband due to money and household duties as outlined in her written statement, and that they had additional marital problems.
I accept her written evidence that the applicant’s parents had initially told her to stay with him to keep her visa but that on return to Australia after taking some time to think in Vietnam, she moved out of the home she shared with her husband.
I accept that the applicant’s husband and mother-in-law made remarks to the applicant that she found to be hurtful, prior to her leaving them, and that they were upset at her for leaving as conveyed to her by her cousin.
I do not accept the applicant’s unsupported claim that her husband’s family would have her beaten up if she returned to Vung Tau. The applicant did not contend that her husband or his family had every threatened her with violence, nor that they were ever violent toward her.
I accept that her husband’s family will verbally insult her if they ever see her, but I find that this will not amount to serious or significant harm.
Having had regard to all of the applicant’s evidence, I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of her husband’s family.
Harm from being Catholic
I accept that the applicant is a practicing Catholic and that she lives her faith by regularly attending Mass. I acknowledge that she sees attending Mass as promoting the faith. I accept that the applicant similarly lived out her faith in Vietnam and that she attended only registered churches.
I do not accept the applicant’s vague and generalised claim that she will have no protection from authorities if she is ever violated for being Catholic.
While I find that the applicant was unable to clearly articulate why it happened, I accept that for a limited period about three years ago, her family’s church was forcibly closed and its parishioners were unable to attend activities including Mass. I accept the applicant’s evidence that since then everything had been okay. I therefore find that this was an isolated incident that will not reoccur.
I have had regard to country information put to the applicant and detailed above, as well as to her evidence that I have accepted, and I find that she will be able to continue practicing her faith in substantively the same way that she chooses to do in Australia which is substantively the same as how she previously practiced in Vietnam.
The applicant also noted in passing that Catholics would not be given high government positions and could only get lower ones. The applicant did not contend that she wanted to apply for a high-level government position, though I accept that there is a low level of discrimination by the Communist Party against Catholics broadly.
In light of my findings above, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of her Catholic faith.
Harm from being a separated woman
Having rejected that the applicant faces violence from her husband’s family, I am not satisfied by the vague and generalised claim that she will face violence or sexual harm from society in general without the protection of a male. No supporting evidence was put before the Tribunal, and there is no country information before the Tribunal suggesting that someone of the applicant’s profile would be subjected to either. I therefore do not accept it.
The representative submitted the same country information as that put to the applicant in the hearing, that while divorce was increasingly common and accepted in Vietnam it may sometimes bring stigma in the form of family ostracism or have economic consequences such as difficulties in finding accommodation.
The Tribunal acknowledges that the applicant is separated and not divorced. The Tribunal nonetheless finds that if a particular person was susceptible to family ostracism or homelessness if divorced, she would likely face similar challenges if separated.
However, the applicant has evidenced her closeness with her whole family despite them knowing about her separation. She speaks with them daily, they were upset with how her husband treated her, and they worried about her living alone in Australia. I draw inference from this that she has not been ostracised nor disowned by her family and find that if she was returned, their relationships will continue substantively similarly to how they have been and are now.
I have had regard to the applicant’s suggestion that she might live in Dong Thap for its natural beauty and because her sister-in-law considered it to be better than Vung Tau. I have also had regard to, and place greater weight on her closeness with her family and the economic challenges the applicant feared she would face on return to Vietnam if she lived alone. I therefore find that she will live with her parents in Vung Tau into the reasonably foreseeable future.
I accept that the applicant will face a degree of stigma from some members of society in the form of intermittent verbal insults. I also accept that the applicant will suffer a degree of stress and emotional harm from her family being privy to such comments. I do not accept that such intermittent verbal insults or the associated stress and emotional harm amount to serious or significant harm.
Regarding work, the representative included information in her written submission that women in Vietnam fared well in the economic sector. There is no supporting evidence before the Tribunal that the applicant’s age of [Age], or the fact that she does not have higher education, will render her unable to find work to sustain herself.
The representative submitted that the applicant’s mental condition rendered her incapable of supporting herself in Vietnam. This is inconsistent with other evidence submitted. Evidence provided by the applicant and the psychologist indicated that she continued working, managed her day-to-day life, and supported herself without relying on others financially. I therefore do not accept that the applicant is incapable of supporting herself in Vietnam.
Having had regard to the country information put to the applicant and documented above, and to her work history and experience, and to her own evidence that her friends who had struggled to find work had found work to subsist, I find that she will find work to sustain herself into the reasonably foreseeable future in her hometown of Vung Tau.
I do not accept that the applicant will fall into the hands of human traffickers. I have had regard to findings already made above and to country information about the profiles of people most susceptible to being trafficked being under the age of 20, of ethnic minority, of limited education and economically vulnerable. Also, that most originate from mountainous regions along Vietnam’s northern border with China and the southern Mekong River Delta region.[10] I find that the applicant, even taking into account her mental health issues, does not fit into these. While individuals with different profiles are not excluded, I find the chance of her being trafficked to be remote.
[10] DFAT Country Information Report: Vietnam, Department of Foreign Affairs and Trade, 19 February 2025, [3.140].
To avoid doubt, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of human traffickers.
I find the applicant’s claim that she may need to borrow money from loan sharks to be highly speculative and unconvincing as I have found that she will live with her parents and will find work to sustain herself. I therefore find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of loan sharks.
Regarding the applicant falling into prostitution, I have had regard to findings that I have already made including that she will find work and will live with her parents. I therefore find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for being prostituted.

100. Having had regard to all of the applicant’s evidence that I have accepted, to her individual circumstances and to the country information put to the applicant, I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of being a separated woman.
Mental health
101. I accept that upon her last return to Australia from Vietnam, the applicant moved out of the house she shared with her husband and the applicant has not lived with, nor had contact with him or his family for over five years.
102. I acknowledge the assessment of the psychologist as presented in her report, that the applicant suffers from depression, anxiety and stress. I have had regard to the psychologist’s comment that the report was confined only to the applicant’s experience of domestic abuse by her husband, all of which occurred in Australia. I have also had regard to the applicant’s written evidence that attributed her poor mental health solely to the way her husband treated her and to the shame of her failed marriage.
103. I have had regard to the psychologist’s reference to the applicant having been encouraged by her community to return to Vietnam in the midst of her marriage troubles for a break and that, having done so for nearly a year, she experienced an improvement in her mental health.
104. I draw inference from the above that the applicant’s mental health as it relates to her marriage breakdown was better following a period in Vietnam than it has been since then in Australia. I nonetheless accept that the applicant’s mental health will suffer anew from a sense of shame if returned, and from the intermittent verbal insults from members of society that I have previously found she will face.
105. I consider that her mental health will also be worsened by a degree of stress and emotional harm from knowing that her family will be privy to some of these insults and that they will suffer emotionally as a result.
106. Finally, I find that her mental health will be further harmed by verbal insults from her husband’s family and the pain her own family will feel from knowing about these.
107. The Tribunal notes that the differential level of mental health treatment the applicant can obtain in Australia relative to Vietnam is not a basis upon which Australia’s protection obligations are enlivened unless there is evidence of the government or service providers deliberately withholding service to the applicant. There is no such evidence before the Tribunal.
108. The Refugee Law Guidelines state that in certain circumstances, mental harm for a refugee protection reason may constitute persecution involving serious harm within the meaning of s 5J(4)(b). The mental harm would need to amount to at least the same level of harm as the examples listed in s 5J(5).
109. Having had regard to the applicant’s evidence and to her individual circumstances, including that she has in the past experienced suicidal ideation as per the psychologist’s report, the Tribunal finds that the mental harm faced by the applicant does not amount to at least the same level of harm as the examples listed in s 5J(5).
110. In making this finding the Tribunal has had regard to SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80, in which the Full Federal Court, in relation to serious mental harm, observed that the cumulative effect of considerable discrimination is likely to entail severe psychological harm. Having had regard to the totality of the discrimination that the applicant will face on return as previously found, the Tribunal finds that the applicant does not face discrimination amounting to considerable discrimination.
111. The Tribunal further finds that the mental harm suffered by the applicant does not amount to significant harm which is defined in s 36(2A).
112. I therefore find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of her mental health.
Cumulative harm
113. I now turn my mind to cumulative harm.
114. I have considered whether the cumulative mental harm that I have found she will face will amount to serious or significant harm when combined with the low level of official discrimination she will face for being Catholic. I find that it will not.
115. I have also considered whether the applicant’s cumulative mental harm alongside the low level of official discrimination she will face for being Catholic, will increase her risk from human traffickers, loan sharks or her risk of being prostituted.
116. Having had regard to the applicant’s individual circumstances including that she has lived in Australia for much of the past eleven years, to country information discussed above, and to the findings I have already made, I find that they will not.
117. To avoid doubt, I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of cumulative harm.
Conclusion
118. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 30 June 2025
Representative for the Applicant: Ms Nguyet Doan
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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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