1706563 (Refugee)

The applicant, a national of Vietnam, sought merits review of the Tribunal's decision to affirm the refusal of her protection visa application. The applicant alleged that during a visit to Vietnam in May 2014, she made critical comments about the Vietnamese Government at her sister's wedding, which were overheard by local government officials. She claimed to have been labelled a "reactionary" and instructed to report to the local people's committee, prompting her to flee to Saigon and return to Australia. She expressed fear of arrest, torture, and an inability to relocate within Vietnam due to government oversight. The applicant had married an Australian citizen, had an Australian citizen child, and her husband had since died. She applied for a protection visa after her student visa expired and she had been an unlawful non-citizen.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for reasons of political opinion, such that Australia had protection obligations towards her under the Migration Act 1958 (Cth). This required determining if there was a real chance that if returned to Vietnam, she would be persecuted for her political opinion, and if such persecution would involve serious harm and be systematic and discriminatory. The court also considered whether effective protection measures were available to her in Vietnam.

The court considered the applicant's claims in light of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'. It noted that the applicant's alleged anti-government statements were made in a private setting at a wedding, and she left Vietnam immediately thereafter, returning to Australia. The court found that the applicant had not demonstrated a well-founded fear of persecution. Specifically, it was not satisfied that there was a real chance of persecution for a Convention reason, nor that any potential harm would constitute serious harm. The court also considered that the applicant had not provided sufficient evidence to establish that she could not access effective protection in Vietnam, or that she could not reasonably relocate within the country. The court further noted that the best interests of the child were not a determinative factor as the child was not an applicant for a protection visa.

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