1827109 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a Vietnamese national who applied for a protection visa. The applicant sought to establish that he had a well-founded fear of persecution for one of the five prescribed reasons, or alternatively, that there were substantial grounds for believing he would suffer significant harm as a necessary and foreseeable consequence of removal to Vietnam.

The Tribunal was required to determine whether the applicant possessed a well-founded fear of persecution under section 5J(1) of the relevant Act. If this criterion was not met, the Tribunal had to consider whether the applicant qualified for complementary protection under section 36(2)(aa) of the Act, by assessing if there was a real risk of significant harm upon removal to Vietnam.

The Tribunal found that the applicant had not made any claims of fearing persecution or suffering harm in Vietnam, nor did he believe he would be harmed if returned. Consequently, the Tribunal concluded that the applicant did not meet the refugee criterion. Furthermore, the Tribunal determined that there were no substantial grounds to believe the applicant would suffer significant harm as a necessary and foreseeable consequence of removal to Vietnam, applying the same "real risk" standard as for the refugee criterion. The Tribunal affirmed the decision not to grant the protection visa. However, the Tribunal referred the case to the Minister for consideration of intervention under section 417 of the Act, noting compassionate circumstances including the applicant's previous partner visa refusal, the stillbirth of twins, the birth of a daughter to an Australian citizen partner, and the potential for serious, ongoing harm and hardship to his wife and child due to lengthy separation.