1814077 (Refugee)

This matter concerned an application for a protection visa by a Vietnamese national. The applicant claimed she would face significant harm if returned to Vietnam due to her active membership and vigorous social media campaigning for the opposition party, Viet Tan. The dispute centred on whether the applicant had proven she was a person to whom Australia owed protection obligations under the Migration Act. The decision was made by G. A. F. Connolly SM.

The primary legal issue before the court was whether the applicant had established substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to Vietnam, there was a real risk she would suffer significant harm. This required the court to assess the applicant's claims against the statutory definition of "significant harm" and the "real risk" test, which is equivalent to the "real chance" test for well-founded fear under the Migration Act. A further consideration involved the status and welfare of the applicant's two children, who were born in Australia but whose births were not registered in Vietnam.

The court found that the applicant had proven her case to the comfortable satisfaction of the Tribunal. Evidence from a local Viet Tan leader indicated that the applicant's active involvement, including participation in protests and social media campaigns against the Vietnamese communist regime, meant she would face the certainty of arrest and imprisonment if returned to Vietnam. The court also considered the unique circumstances of the applicant's children, who had known no country other than Australia and whose unregistered births meant they would face an extraordinarily difficult existence in Vietnam. The court reasoned that the Crown's rights and duties, particularly in relation to the welfare of vulnerable persons within its realm, were enlivened in this situation, necessitating a just and protective approach.

The decision under review was remitted with directions and recommendations.