1802872 (Refugee)

The case involved a Vietnamese national who applied for a protection visa in Australia, claiming he feared persecution upon return to Vietnam. The applicant arrived in Australia in April 2015 and lodged his protection visa application in November 2016. He claimed to have faced harassment, detention, physical assault, and discrimination due to his religious activities as a Christian and his perceived anti-government stance. The applicant also claimed membership in particular social groups, including Christians in Vietnam, Christians accused of resisting government instructions, and failed asylum seekers. The matter was heard by Mark Bishop, Senior Member, of the Tribunal.

The central legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Specifically, the Tribunal had to consider if the applicant's fear of persecution based on his Christian faith, his alleged involvement in anti-government activities, and his membership in certain social groups was well-founded and constituted serious harm. The Tribunal also had to consider the claims of the secondary applicant, who was the applicant's son and a member of his family unit.

The Tribunal considered the applicant's detailed account of past experiences, including being summoned to the police station, subjected to physical abuse, losing employment due to authorities approaching employers, and experiencing increased surveillance and interrogation after his mother's departure from Vietnam. The Tribunal also took into account the applicant's assertion that he and his son would not be able to openly practice their religion if returned to Vietnam and that authorities would detain, harass, and potentially kill him due to his past activities and warnings. The Tribunal applied the principles of section 5J of the Migration Act regarding the meaning of a well-founded fear of persecution, including the requirement for a real chance of persecution for an essential and significant reason, involving serious harm and systematic and discriminatory conduct.

Ultimately, the Tribunal remitted the matter for reconsideration. The direction was that the applicant satisfied the criteria under section 36(2)(a) of the Migration Act, and the secondary applicant satisfied the criteria under section 36(2)(b)(i) of the Migration Act, meaning the applicant was found to be a refugee, and his son was a member of his family unit who also met the criteria for a protection visa.