1721918 (Refugee)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse the applicant a protection visa. The applicant, a national of Vietnam, had resided in Australia for approximately eight years and had previously held a student visa and a partner visa. The applicant declined to attend an interview with the Tribunal and requested that the decision be made based on the existing documentation. The Tribunal noted that the applicant had failed to provide a complete copy of the Department’s decision record and had not provided any further submissions or documentary evidence to substantiate her claims since lodging her protection visa application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if effective protection measures were unavailable in Vietnam. The Tribunal also considered whether the applicant was a member of the same family unit as a person who held a protection visa, as provided for in sections 36(2)(b) and (c).

In its reasoning, the Tribunal acknowledged the applicant's claims as set out in her application form: that she left Vietnam due to threats related to family debt, that her life would be threatened if she returned, that authorities would not protect her as the harm was to individuals rather than society, and that she could not relocate within Vietnam. However, the Tribunal found that the applicant had provided no further evidence or submissions to support these claims beyond her initial application. The Tribunal also noted that the applicant had not been invited to an interview by the delegate prior to the initial decision. Applying the principles of section 5J of the Migration Act, the Tribunal found that the applicant had not demonstrated a well-founded fear of persecution, nor had she established that she could not avail herself of the protection of Vietnam or that effective protection measures were unavailable. The Tribunal also found no evidence to suggest the applicant was a member of the same family unit as a protection visa holder.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that she did not satisfy the criterion in section 36(2) of the Migration Act.