1823836 (Refugee)

The applicant sought review of a decision to refuse to grant a Safe Haven Enterprise Visa (SHEV). The applicant had arrived in Australia by boat without a valid visa and was initially assumed to be an unauthorised maritime arrival (UMA) to whom a statutory bar on making valid visa applications applied. The Minister had purported to lift this bar on multiple occasions to allow the applicant to apply for the SHEV. Following the refusal of the SHEV application, the matter was referred to the Immigration Assessment Authority (IAA), which affirmed the refusal. The applicant then sought judicial review of the IAA's decision.

The central legal issue before the court was whether the applicant satisfied the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth). This required the court to determine if the applicant held a genuine fear of persecution for a Convention reason, or if he could be returned to Vietnam and face harm due to imputed political opinion, membership of a particular social group, or his religion. The court also had to consider the implications of a prior Federal Court decision, *DBB16 v Minister for Immigration and Border Protection*, which established that the applicant was not a UMA and the statutory bar did not apply to him.

The court reasoned that the applicant's circumstances, including his lengthy stay outside Vietnam, his religion as a Catholic, and potential land compensation disputes, could lead to him being subjected to harm or persecution upon return to Vietnam. The court found that the applicant satisfied section 36(2)(a) of the Act, meaning he met the criteria for a protection visa. The court also noted that the applicant's previous applications and the delegate's decision were made under a misunderstanding of his immigration status, which was later corrected by the Federal Court in *DBB16*.

Consequently, the court combined the applicant's review applications and remitted the SHEV application for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Act. The court also set aside a separate decision concerning a later visa application, deeming it invalid.