1907452 (Refugee)

The applicant, a national of Vietnam, sought review of a decision concerning his applications for a Safe Haven Enterprise visa. The dispute centred on whether the applicant met the criteria for being a refugee under the Migration Act 1958 (Cth), specifically concerning his fear of persecution. The matter was before the Tribunal, presided over by Member Nora Lamont.

The core legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, and whether Australia owed him protection obligations under section 36(2)(a) of the Act. The applicant claimed he had participated in anti-government demonstrations in Australia and had been discriminated against and teased for being homosexual in Vietnam. He also contended that he could not return to Vietnam as a failed asylum seeker.

The Tribunal considered Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information. It noted the applicant's claims regarding the loss of his family home due to lack of documentation, his father's death, his mother's abandonment, and his brothers' support. Crucially, the Tribunal examined the applicant's assertion of being called a "lady boy" and teased for being homosexual at school and by adults in Vietnam, and his fear of forced marriage or societal condemnation of homosexuals upon return. The Tribunal found that no exclusions under section 5H(2) applied and concluded that the applicant was a refugee for the purposes of section 36(2)(a) of the Act.

Consequently, the Tribunal remitted the applicant's Safe Haven Enterprise visa applications, made on 5 October 2016 and 31 October 2020, for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.