1825807 (Refugee)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicants a Protection XA subclass 866 Visa. The applicants, citizens of Vietnam, comprised a father and his daughter. The father had arrived in Australia in May 2017 and again in June 2018 with his daughter, both on visitor visas. A migration agent was appointed to represent them in their protection visa application, which was lodged in June 2018. The delegate refused the visa application on 23 August 2018, and the applicants sought merits review by the Tribunal. The daughter departed Australia in November 2018.

The primary legal issues before the Tribunal were whether the main applicant was a refugee within the meaning of the Migration Act 1958 (Cth) and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Vietnam, he would suffer significant harm. These questions required the Tribunal to determine if the main applicant held a "well-founded fear of persecution" and if a real risk of "significant harm" existed.

The Tribunal accepted the veracity of certain claims and evidence presented by the main applicant and his sister. However, it found that the main applicant had no awareness or understanding of the substance of his protection visa application or the delegate's decision record, largely due to the conduct of his former representative. Crucially, the Tribunal determined that the detention, mistreatment, and surveillance experienced by the main applicant's father, a former member of the South Vietnamese military, had ceased years before his relocation to Australia. Furthermore, the Tribunal found that neither the main applicant nor his other family members had personally experienced any issues with the Vietnamese government stemming from the father's past military service or for any other reason. The Tribunal concluded that the main applicant's primary motivation for remaining in Australia was to be near his parents and siblings and to continue his work.

Consequently, the Tribunal found that if the main applicant were returned to Vietnam, there was no real chance he would be persecuted, and therefore he did not possess a "well-founded fear of persecution." Similarly, the Tribunal found no substantial grounds to believe there was a real risk of him suffering significant harm as a necessary and foreseeable consequence of his removal. Accordingly, the Tribunal affirmed the delegate's decision to refuse to grant the protection visa.