1904274 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration and Border Protection to refuse the applicant, a citizen of Vietnam, a protection visa. The applicant arrived in Australia by sea in April 2013 and was subsequently granted a Temporary Safe Haven visa. The applicant made a first application for a Temporary Protection visa (TPV) on 28 June 2017, which was refused by the delegate on 29 September 2017. A second application for a Safe Haven Enterprise visa (SHEV) was made on 22 September 2020. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, considering claims of persecution based on religion and political opinion, and to assess the validity of the second visa application in light of previous decisions and statutory bars.

The Tribunal considered the applicant's claims of a well-founded fear of persecution in Vietnam due to his Roman Catholic faith, his alleged membership in the Viet Tan party, and his attendance at demonstrations and social media activity in Australia. The court was required to assess the credibility of these claims, particularly in light of the applicant's departure from Vietnam on a passport in his own name and inconsistencies in his evidence. Furthermore, the Tribunal had to determine whether the applicant's activities in Australia were undertaken for the purpose of strengthening his protection claims or otherwise. The legal issues also encompassed the application of statutory bars, specifically section 91K and section 48A of the Migration Act 1958 (Cth), and whether the applicant qualified as an ‘unauthorised maritime arrival’ or ‘fast track applicant’.

The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The reasoning focused on the applicant's credibility and the substance of his claims. The Tribunal found that the applicant's first visa application was not invalid due to the operation of section 91K, as he was not an ‘unauthorised maritime arrival’. Consequently, the second application for a SHEV was considered invalid because the first application had not been refused due to the operation of section 91K. Regarding the merits of the protection claims, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of religion or political opinion. The applicant's claims regarding his religious beliefs were not substantiated, and his alleged affiliation with Viet Tan was found to be tenuous, with no recent activity and his parents continuing to attend the same church. The Tribunal also considered that any activities undertaken in Australia were not engaged in for the purpose of strengthening his claim, as required by section 36(6) of the Migration Act. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa.