1815803 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa for Australia, who was a national of Vietnam. The applicant had arrived in Australia on a student visa and, after nearly four years, applied for protection, claiming a negative view of the Vietnamese government due to information accessed online, asserting a lack of freedom of speech and human rights. The AAT, presided over by Senior Member Wayne Pennell, was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth).

The central legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution or a real risk of significant harm upon removal to Vietnam, thereby triggering Australia's protection obligations under section 36(2) of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess if there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal, he would suffer significant harm, or if he was a person in respect of whom Australia had protection obligations as defined by the Act. The Tribunal also considered its role in assessing the applicant's claims, noting that the onus rested on the applicant to specify and provide sufficient evidence to establish his claims, and that the Tribunal was not obliged to make or assist in making the applicant's case.

The Tribunal reasoned that the applicant's claim was based on a change of perspective regarding the Vietnamese government, developed after his arrival in Australia, rather than a pre-existing fear of persecution for reasons outlined in the Act, such as race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal emphasised that the mere assertion of a fear does not establish its genuineness, well-foundedness, or its connection to a protected reason. Furthermore, the Tribunal noted that the applicant had not satisfied the criteria under section 36(2) of the Act, nor had he demonstrated that he was a member of the same family unit as a person who met those criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.