1907870 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the protection visa applications of two applicants, a woman and her child, who sought to remain in Australia. The primary applicant had previously held various visas, including a partner visa, but these were ultimately refused. She subsequently commenced a relationship with an Australian resident, experienced domestic violence, and became pregnant. She applied for a protection visa, later joined by her child who was born in Australia. The delegate refused to grant the protection visas, and this decision was brought before the Tribunal for review.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, specifically whether they had a well-founded fear of persecution or faced a real risk of significant harm if returned to Vietnam. This involved assessing the first applicant's claims of domestic violence, her vulnerability as a single mother with a speech impediment, and her concerns about her safety and lack of support in Vietnam. The Tribunal also had to consider the best interests of the child, who was an Australian citizen.

In its reasoning, the Tribunal referenced Ministerial Direction No. 84 and the associated guidelines, including the Refugee Law Guidelines and Complementary Protection Guidelines. It noted that a person may be granted a visa if they meet the refugee criterion under s 36(2)(a) of the Migration Act 1958 or the complementary protection criterion under s 36(2)(aa), which requires a real risk of significant harm as a necessary and foreseeable consequence of removal. The Tribunal found that the second applicant, being an Australian citizen, could not be granted a protection visa. Ultimately, the Tribunal affirmed the delegate's decision not to grant the protection visas to either applicant.