1819549 (Refugee)

This matter concerned an application for a protection visa by a man from Vietnam. The applicant claimed he feared persecution in Vietnam due to his homosexuality, asserting he was a member of a particular social group and also relying on complementary protection. The decision under review affirmed the refusal of the protection visa.

The court was required to determine two primary issues. Firstly, whether there was a real chance that the applicant would be persecuted in Vietnam for one of the five prescribed reasons under section 5J(1)(a) of the Act, for the purposes of section 36(2)(a). Secondly, if the refugee criterion was not met, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Vietnam, he faced a real risk of suffering significant harm, pursuant to section 36(2)(aa) of the Act.

The court noted that if a person does not meet the refugee criterion, they may still qualify for a visa if they meet the complementary protection criterion. This criterion requires substantial grounds for believing that removal would result in a real risk of significant harm. The court considered the applicant's claims, including his assertion of being a closeted homosexual fearing familial, community, and state reprisal, and his relationship with his partner. However, the court found inconsistencies and contradictions in the applicant's evidence regarding the commencement of his relationship, his residential history, and his work history. Crucially, the court found that the applicant had not provided sufficient supporting evidence to substantiate his claims.

The court concluded that the applicant did not satisfy the criterion under section 36(2) of the Act. There was no suggestion that the applicant qualified based on being a member of the same family unit as a person who held a protection visa. Consequently, the decision under review was affirmed.