1819704 (Refugee)

This matter concerned an application for a protection visa by a family unit from Vietnam. The applicants claimed they would face persecution if returned to Vietnam due to political activism, religious beliefs, and, for the child applicant, autism and the associated stigma. The Tribunal was required to consider the claims of each applicant, including the first applicant's alleged involvement with the activist group "Tam Ho" and the second applicant's Catholic faith and activism. The Tribunal also had to assess the claims of potential stigma and discrimination against the third applicant, who suffers from autism, and the joint claim that they would face persecution as failed asylum seekers.

The central legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as refugees, or alternatively, under section 36(2)(aa) as persons facing significant harm as a necessary and foreseeable consequence of removal. This involved determining if there was a well-founded fear of persecution for reasons of political opinion or religion, or a real risk of significant harm, considering the country information and the applicants' evidence. The Tribunal also had to consider the provisions relating to membership of a particular social group and the concept of effective protection measures available in Vietnam.

The Tribunal concluded that the matter should be remitted for reconsideration. While not explicitly detailing the reasoning for each applicant's claim, the decision indicates that the Tribunal was not satisfied that the second, third, and fourth applicants met the criteria for protection in their own right. However, it found that they were members of the same family unit as the first applicant. The Tribunal directed that the third applicant satisfies section 36(2)(a) of the Migration Act, and that the other applicants satisfy section 36(2)(b)(i) based on their family unit membership with the first applicant. The matter was remitted with the further direction that the grant of visas would not be prevented by section 91W of the Act.