1620690 (Refugee)

This matter concerned an application for a protection visa by a Vietnamese national. The applicant claimed to fear returning to Vietnam due to economic hardship and the uncertainty of his future there, as well as his desire to care for his girlfriend and her children in Australia. He also identified as Catholic and had previously been imprisoned for an unlawful attempt to leave Vietnam. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth), specifically whether he was a refugee or a non-citizen who would suffer significant harm if removed from Australia.

The Tribunal considered the applicant's claims regarding economic hardship and his relationship in Australia. It noted that the applicant's initial stated reason for wishing to remain in Australia was that life was "really hard" in Vietnam and "heaven" in Australia, and that he wished to look after his girlfriend. The Tribunal also reviewed the applicant's written statement detailing his marriage breakdown in Australia and his subsequent relationship, and his fear of being alone if returned to Vietnam. The Tribunal assessed whether these circumstances constituted a well-founded fear of persecution under section 5J of the Act, or a real risk of significant harm under section 36(2)(aa).

The Tribunal found that the applicant had not provided sufficient evidence, particularly regarding his wife's citizenship and his own marriage, despite being requested to do so. It placed significant weight on the applicant's lengthy period as an unlawful non-resident in Australia. The Tribunal concluded that it was not satisfied that the applicant met the criteria for a protection visa under either section 36(2)(a) or 36(2)(aa). Furthermore, the Tribunal considered whether to recommend Ministerial Intervention under section 417 of the Act but declined to do so, noting the lack of evidence and the applicant's prolonged unlawful status.

The Tribunal affirmed the decision not to grant the applicant a protection visa.