2212121 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse a protection visa to a Vietnamese national. The applicant arrived in Australia in 2009 and had a complex migration and criminal history, including multiple drug convictions and the mandatory cancellation of a partner visa due to character grounds, which was affirmed by the Tribunal. The applicant subsequently applied for a protection visa, citing asthma and difficulties in obtaining treatment in Vietnam as grounds for fearing harm if returned.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under s 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, whether there were substantial grounds for believing he would suffer significant harm if removed to Vietnam under s 36(2)(aa), or if he was a member of the same family unit as a person with protection obligations under s 36(2)(b) or (c). The Tribunal was required to determine if the applicant's claimed fear of harm was for one of the prescribed reasons under s 5J(1)(a) of the Act, which include race, religion, nationality, membership of a particular social group, or political opinion.

The Tribunal determined the matter on the papers, as the applicant consented to this course and provided no new evidence. The delegate had refused the protection visa because they were not satisfied that the applicant's claimed fear of harm in Vietnam was for a reason specified in s 5J(1)(a) of the Act, nor that he would be targeted for such reasons upon return. The Tribunal considered the available evidence, which included the Department's file and the delegate's decision record.

The Tribunal affirmed the delegate's decision to refuse the protection visa. The applicant's claims regarding asthma and the difficulty of obtaining treatment in Vietnam were not found to be for a reason that engaged Australia's protection obligations under the Act, as they did not relate to persecution based on race, religion, nationality, membership of a particular social group, or political opinion.