1814526 (Refugee)

The applicant, a citizen of Vietnam, sought review of the refusal of her application for a Protection (XA-866) visa. The applicant had previously held a Student visa and a Partner visa, the latter of which was refused and subsequently withdrawn from review. The applicant's Protection visa application was refused by the delegate, and this refusal was the subject of the review before the Tribunal. The applicant also requested the Tribunal to refer the matter to the Minister for consideration under s 417 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa as defined in s 36 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to determine if the applicant was a refugee under s 36(2)(a) or if she was a member of the same family unit as a person who met the criteria for a protection visa under s 36(2)(b) or (c). The applicant's submissions indicated a reliance on her relationship with an Australian citizen partner and their Australian citizen child, as well as a general statement about being unable to live in Vietnam, rather than specific claims of persecution.

The Tribunal considered the applicant's submissions and the evidence provided. The applicant did not present claims of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, nor did she provide evidence to support such claims. Her written response to the delegate focused on her relationship with her Australian partner and child, and her desire to remain in Australia to care for her family, and the difficulty of returning to Vietnam after a long period in Australia. The Tribunal found that the applicant had not satisfied the criteria for a protection visa, as she had not established that she was a refugee or a member of the family unit of a refugee. The Tribunal also noted that it was not its role to advocate for the applicant and that any request for Ministerial intervention under s 417 should be made directly to the Minister.

The Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal stated that it should not do anything other than determine whether the applicant satisfied the criteria for the grant of a protection visa, and that the applicant could make her own request to the Minister to exercise powers under s 417 of the Act.