1721292 (Refugee)

The applicant, a woman from Vietnam, sought review of a decision not to grant her a protection visa. She claimed a well-founded fear of harm from her father's relatives in Vietnam following her brother's murder of their father over a property dispute. The applicant had not been present during the murder but alleged she was attacked by relatives when she visited Vietnam in 2012 and feared further harm if she returned due to potential claims on her late father's estate. The decision under review was affirmed by the Tribunal.

The primary legal issues before the court were whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by section 36(2)(a) of the Migration Act 1958 (Cth), or whether she met the complementary protection criterion under section 36(2)(aa) by demonstrating a real risk of significant harm as a necessary and foreseeable consequence of removal to Vietnam. The court also considered whether compassionate circumstances warranted referral for ministerial intervention under section 417 of the Act.

The Tribunal found that while the applicant's brother had killed her father and her father's relatives had behaved abusively towards her in 2012, there was no evidence of ongoing pursuit or threats. Given that over ten years had passed since that encounter, and the applicant had made no attempt to contact her father's family or pursue any claim to the family property, the Tribunal was not satisfied that there was a real chance she would suffer harm if she returned to Vietnam. Consequently, the Tribunal concluded that the applicant did not meet the criteria for a protection visa under either the refugee or complementary protection provisions.

The Tribunal affirmed the decision not to grant the applicant a protection visa. However, it noted the applicant's marriage to an Australian citizen and their two Australian citizen children, one of whom has a diagnosed developmental delay and Autism Spectrum Disorder requiring ongoing support. These circumstances were considered in the context of potential referral for ministerial intervention under section 417 of the Act, although the final outcome of such a referral was not determined by this decision.