2115852 (Refugee)

This matter concerned an application for a protection visa by a Vietnamese national. The applicant had arrived in Australia in September 2008 on a student visa and had remained in Australia unlawfully for over seven years. The applicant claimed he could not return to Vietnam and had not experienced past harm in Vietnam. The decision under review affirmed the refusal of the protection visa application.

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 *Migration Act 1958* (Cth) for the purposes of section 36(2)(a) of the Act. Secondly, if the first 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, there was a real risk that he would suffer significant harm, pursuant to section 36(2)(aa) of the Act.

The court considered the applicant's claims regarding his inability to access mental health intervention and assistance in Vietnam, and the prolonged absence from Vietnam. It also had regard to Ministerial Direction No. 84, the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information assessments. The court noted that if a person does not meet the refugee criterion, they may still meet the criteria for a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. The court also considered the meaning of significant harm and the circumstances in which a person will not be taken to face such a risk, as set out in sections 36(2A) and (2B) of the Act.

The court affirmed the decision under review, indicating that the applicant's claims did not satisfy the requirements for the grant of a protection visa.