1819779 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa by an applicant seeking to avoid return to Vietnam. The applicant's primary stated reasons for seeking protection were his desire to remain in Australia to care for his young child and support his recently delivered wife, and to avoid being separated from his family. The applicant had waived his right to a hearing before the Tribunal and requested the matter be decided on the papers.

The legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution for a Convention reason, or alternatively, whether there was a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Vietnam, thereby meeting the criteria for complementary protection. The Tribunal was required to consider the applicant's written claims and the delegate's decision, taking into account relevant guidelines and country information.

The Tribunal reasoned that the applicant's stated reasons for not wishing to return to Vietnam, while understandable, were personal in nature and did not establish a fear of persecution based on a Convention reason. Furthermore, the Tribunal found that the applicant had not provided sufficient information to satisfy it that there was a real risk of suffering significant harm upon return to Vietnam, either now or in the reasonably foreseeable future, for the purposes of complementary protection. The applicant's submissions focused on his desire to remain with his family and sought referral to the Minister for potential spouse visa application after an affirmation by the Tribunal, rather than disputing the delegate's findings on protection claims.

The Tribunal affirmed the decision not to grant the applicant a protection visa. However, the Tribunal indicated it would refer the matter to the Department for consideration under ministerial intervention powers.