1910200 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a citizen of Vietnam, arrived in Australia unlawfully and initially claimed to have left his country for reasons of peace, human rights, and economic opportunity, expressing fear of debt and a desire to work for his children's education. Subsequently, the applicant provided further information detailing a history of land acquisition disputes in 2004, subsequent protests, and alleged mistreatment by authorities, including his father being tortured and threatened with charges related to political activity. He also cited difficulties obtaining official documents and threats from a money lender.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of the Act, or if he faced a real risk of significant harm if returned to Vietnam under the complementary protection provisions. This involved assessing his claims of persecution based on political opinion and the risk of harm from both state and non-state actors. The Tribunal also had to consider the applicant's illegal entry and any conduct engaged in Australia that might affect his claim.

In its reasoning, the Tribunal acknowledged the applicant's claims regarding the 2004 land acquisition and subsequent protests, as well as the threats from a money lender. However, it found that the applicant had not established a well-founded fear of persecution for reasons of political opinion as required by section 5J of the Migration Act 1958. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which requires a real risk of significant harm as a necessary and foreseeable consequence of removal. Despite the applicant's circumstances, including having an Australian citizen partner and child, and the prolonged nature of his visa application history, the Tribunal affirmed the decision not to grant him a Temporary Protection visa.

The Tribunal set aside and substituted a decision regarding a Temporary Protection visa made on 12 November 2020, deeming it invalid. Despite not granting the protection visa, the Tribunal considered the applicant's circumstances, including his Australian citizen family members and the complexities of his visa history, warranted referral to the Department for consideration by the Minister under discretionary powers.