1820393 (Refugee)

This matter concerned an application for a Subclass 866 Protection visa by a woman from Vietnam. The applicant had remained in Australia since 1999 after her visitor visa expired and subsequently had three Australian citizen children with her current husband. She applied for the protection visa in 2017, stating her desire not to return to Vietnam due to her children and the potential impact of separation. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The primary legal issue before the AAT was whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958. Specifically, the Tribunal considered whether the applicant was a refugee under section 36(2)(a) or whether she met the "complementary protection criterion" under section 36(2)(aa), which requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of suffering significant harm. The Tribunal also considered whether the applicant was a member of the same family unit as a person who met these criteria, as per sections 36(2)(b) and (c).

The Tribunal found that the applicant did not satisfy the criterion under section 36(2) as she did not meet the definition of a refugee or the complementary protection criterion. The Tribunal noted that there was no suggestion the applicant was a member of the same family unit as a person who held a protection visa. However, the Tribunal acknowledged the applicant's long-term presence in Australia, her role as the full-time carer for her three Australian citizen children, and the particular vulnerability of one child with a diagnosed medical condition. The Tribunal concluded that the applicant's removal from Australia could result in ongoing and irreversible harm and continuing hardship to an Australian citizen, and that her removal may not be in her child's best interests.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. Nevertheless, the Tribunal referred the matter to the Department for consideration by the Minister under section 417 of the Act, given the potential public interest in substituting a more favourable decision due to the impact on the Australian citizen children.