2210202 (Refugee)

This matter concerned an application for a protection visa by a Vietnamese national. The applicant’s original protection claim was based on his father’s refugee status and the fear of persecution stemming from that history. However, the applicant also advanced a complementary protection claim based on a terminal illness and a lack of access to appropriate healthcare and medication in Vietnam. The applicant has an extensive criminal record and a history of drug addiction. The decision under review was affirmed by the Tribunal.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) by satisfying the refugee criterion, or alternatively, under section 36(2)(aa) of the Act by satisfying the complementary protection criterion. This involved determining if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to Vietnam, the applicant faced a real risk of suffering significant harm.

The Tribunal found that the applicant did not satisfy the refugee criterion. In relation to the complementary protection criterion, the Tribunal applied the "real risk" test and found that the applicant did not face a real risk of significant harm. The Tribunal accepted that the applicant had no friends or relatives in Vietnam and no support network there, and that his travel to Vietnam in 2015 was for the purpose of attempting to overcome a methadone addiction. However, despite accepting the applicant as a witness of truth regarding his personal circumstances, the Tribunal was not satisfied that substantial grounds existed to believe he would suffer significant harm upon removal.

Although the Tribunal affirmed the decision not to grant the protection visa, it referred the matter to the Minister for intervention under section 417 of the Act. This referral was based on the Tribunal’s view that the public interest would be served by the Australian Government responding with care and compassion to the applicant’s exceptional circumstances, including his terminal illness, his lack of connections in Vietnam, and the presence of his Australian citizen family members in Australia.