1837741 (Refugee)

This matter concerned an appeal by a Vietnamese national, identified as the first named applicant, and her sons, against a decision of the Administrative Appeals Tribunal (AAT). The applicant had arrived in Australia as an Unauthorised Maritime Arrival and sought a protection visa. The core of the dispute revolved around the validity of earlier AAT decisions that had deemed her application invalid, preventing a substantive review of her claims for protection. The applicant argued that these earlier decisions were erroneous and should be treated as a nullity, allowing for a fresh consideration of her case.

The legal issues before the court were whether the Tribunal’s prior decisions to set aside the delegate’s decision and substitute a finding that the applicant’s protection visa application was invalid were plainly wrong, and if so, whether the matter should be reopened and remitted for reconsideration. Specifically, the court had to determine if the applicant’s claims of membership in the Vietnam Reform Revolutionary Party (Viet Tan) and her outspoken criticism of the Vietnamese authorities constituted grounds for protection, and whether the statutory bars under s 91K and s 48A of the Migration Act 1958 (Cth) precluded such a review.

The court found that the Tribunal’s earlier decision to deem the applicant’s application invalid was plainly wrong, particularly as the merits of her protection claim had not yet been substantively considered. Citing judicial authority, the court determined it was lawful and sound to treat the first Tribunal’s decisions in relation to the first named applicant and her sons as a nullity. The court accepted the evidence that the applicant had become a committed member of Viet Tan, had participated in protests, and was a vocal critic of the Vietnamese government. Given that Viet Tan is considered a proscribed organisation in Vietnam, the court found a real chance the applicant would be identified as an active member and outspoken critic if returned, and that she would continue her political activities.

The Tribunal remitted the matter for reconsideration. It directed that the first named applicant satisfies s 36(2)(a) of the Migration Act, and that the second and third named applicants satisfy s 36(2)(b)(i) on the basis of being members of the same family unit. The Tribunal noted it did not have jurisdiction with respect to the fourth named applicant, as their review application had lapsed due to their passing.