2008759 (Refugee)

The applicant, a Vietnamese citizen, sought a protection visa in Australia. The dispute centred on whether Australia had protection obligations towards him, either under the refugee criterion or complementary protection grounds. The case was heard by Alison Murphy, a member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth), or alternatively, whether he met the criteria for complementary protection under section 36(2)(aa). This involved assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion, and whether he faced a real risk of significant harm upon removal to Vietnam.

The Tribunal accepted that the applicant had participated in protests against the Formosa chemical spill in Vietnam and had been detained for two days as a result. It also accepted that local authorities had subsequently denied his family access to essential services, including healthcare and education, and had refused to grant him permission to travel for work. The Tribunal found that this denial of services constituted serious harm threatening his capacity to subsist and arbitrary detention, and that the essential and significant reason for this harm was his actual and imputed political opinion. Despite acknowledging that large-scale protests were no longer occurring, the Tribunal concluded that there remained a real chance the applicant would again face discriminatory denial of basic services if returned to Vietnam, which would threaten his capacity to subsist. Consequently, the Tribunal found that the applicant met the definition of a refugee under section 36(2)(a) of the *Migration Act*.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.