1821127 (Refugee)

This matter concerned a protection visa application made by a married couple who were citizens of Vietnam. The applicants sought protection in Australia due to claims of persecution and significant harm if returned to Vietnam. Crucially, their son, who was initially included as a third applicant, had since been granted Australian citizenship, and all claims relating to him were withdrawn.

The court was required to determine two primary issues. Firstly, whether there was a real chance that the applicants would be persecuted in Vietnam for one of the five reasons specified in section 5J(1)(a) of the Migration Act 1958 (Cth) for the purposes of section 36(2)(a). Secondly, if they did not meet the refugee criterion, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal to Vietnam, they faced a real risk of suffering significant harm, pursuant to section 36(2)(aa) of the Act.

The court considered the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act. It also took into account relevant Ministerial Directions, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments prepared by the Department of Foreign Affairs and Trade. The decision under review was remitted, indicating that the court found grounds to reconsider the original determination.