1907613 (Refugee)

This matter concerned an application for a protection visa by a man from Vietnam. The applicant arrived in Australia in April 2013 and made two subsequent applications for a Safe Haven Enterprise Visa (SHEV). The dispute centred on whether the applicant had established claims for protection based on his religion, imputed political opinion, and his status as a returned asylum seeker. The decision was made by Nicole Burns.

The legal issues before the court were whether the applicant faced a real chance of suffering significant harm if returned to Vietnam, thereby engaging Australia's protection obligations under section 36(2)(aa) of the Migration Act 1958 (Cth). Specifically, the court had to consider claims that the applicant, a Catholic, feared persecution due to his religious activities, which he alleged were deemed political by the Vietnamese government. The court also considered claims of imputed political opinion arising from his alleged pro-democracy activities in Australia and his status as a failed asylum seeker who had departed Vietnam illegally.

The court applied the principles of complementary protection, considering whether there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of removal. The court noted that while the applicant was accepted as Catholic, there was insufficient evidence that he had organised religious events or was known to the authorities for such activities. Furthermore, the court found that while the applicant had been fined for having a third child, this did not amount to persecution, particularly as country information indicated Vietnam no longer strictly enforced a two-child policy. Regarding his return as a failed asylum seeker, the court found, based on country information, that he did not face a real chance of serious harm. The court also considered the applicant's claims of pro-democracy activities in Australia and the potential for his details to have been provided to the Vietnamese government, but ultimately found these claims did not establish a real risk of significant harm.

The court affirmed the decision under review, finding that the applicant had not established that he would suffer significant harm upon return to Vietnam.