1815112 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to fear harm from gangsters in Vietnam to whom she owed a significant debt. The applicant's child is an Australian citizen. The Tribunal affirmed the decision not to grant the applicant a protection visa.

The primary 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 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also considered the meaning of "significant harm" as defined in section 36(2A) and the circumstances under which a person would not be taken to face a real risk of such harm, as outlined in section 36(2B).

The Tribunal noted that while the applicant had provided some information regarding her financial difficulties and the threats made by gangsters to her mother's business and family, this information was considered insufficient to establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal applied the principles outlined in Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines. Despite affirming the decision not to grant the visa, the Tribunal found that there were strong compassionate circumstances involving serious, ongoing, and irreversible harm and continuing hardship to the applicant and her Australian citizen child, constituting compelling and exceptional circumstances that warranted referral for ministerial intervention.