1609717 (Refugee)

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a woman from Vietnam, claimed she had a well-founded fear of persecution upon return due to her family's history of opposition to the Communist regime, her own outspokenness against the government, and her unwitting involvement in immigration fraud. The Tribunal was required to determine whether the applicant met the definition of a refugee under section 5H of the *Migration Act 1958* (Cth), or alternatively, whether there were substantial grounds for believing she would suffer significant harm as a necessary and foreseeable consequence of removal to Vietnam under paragraph 36(2)(aa) of the Act.

The Tribunal considered the applicant's claims regarding her family's political victimisation, her own perceived opposition to the regime, and her fear of being investigated and potentially harmed by Vietnamese authorities due to her involvement in immigration fraud. The Tribunal assessed whether these fears constituted persecution involving "serious harm" and whether her religion and real or imputed political opinion were the essential and significant reasons for the feared persecution. It also considered whether the feared persecution was systematic and discriminatory, and whether the Vietnamese government was responsible for it, rendering effective protection unavailable.

The Tribunal found that the cumulative effect of the applicant's circumstances created a real chance that she would be persecuted for reasons of her religion and her real or imputed political opinion. It concluded that the feared harm amounted to persecution involving serious harm, with her religion and political opinion being the essential and significant reasons. The Tribunal determined that the persecution was systematic and discriminatory, and that the Vietnamese government was responsible, with no effective protection available. Consequently, the Tribunal found the applicant to be a refugee under section 5H of the *Migration Act*, satisfying the criterion in paragraph 36(2)(a) of the Act, and therefore did not need to consider the complementary protection criterion. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied paragraph 36(2)(a) of the *Migration Act*.