1703999 (Refugee)

This matter concerned an application for a Protection visa by a Vietnamese national whose permanent visa had been cancelled under s.501(3A) of the Migration Act 1958 due to a criminal record. The applicant arrived in Australia in 1983 and had not returned to Vietnam since. The primary dispute before the Tribunal was whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons, or alternatively, whether there were substantial grounds for believing that removal to Vietnam would result in a real risk of significant harm.

The legal issues before the Tribunal were twofold: first, whether the applicant possessed a well-founded fear of persecution as defined by s.5J(1) of the Migration Act 1958, considering reasons such as race, religion, nationality, membership of a particular social group, or political opinion. Second, if the refugee criterion was not met, the Tribunal was required to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Vietnam, he faced a real risk of suffering significant harm, as contemplated by s.36(2)(aa) of the Act.

The Tribunal considered the applicant's claims in light of relevant country information and policy guidelines, including the Law on Vietnamese Nationality 2009 and its 2014 amendments concerning the retention of nationality for overseas Vietnamese. While acknowledging the applicant's Vietnamese origin, the Tribunal noted submissions that he had never been formally registered as a citizen and had not attempted to retain his nationality within the statutory timeframe, although amendments had since removed time constraints. Ultimately, the Tribunal found no substantial grounds to believe that the applicant would suffer significant harm upon removal to Vietnam, nor was it satisfied that he met the refugee criterion.

Consequently, the Tribunal set aside the decision to refuse the applicant a Protection (Class XA) visa and substituted a decision to refuse a Protection (Class XD) visa, finding that the applicant did not satisfy the criteria for the grant of a protection visa under either s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958.