1916133 (Refugee)

The case involved an applicant seeking a protection visa, claiming fear of persecution in Vietnam due to their Catholic religion and membership in the political group Viet Tan. The applicant also alleged an illegal departure from Vietnam and expressed fear of detention and torture of political prisoners. The decision was made by Damian Creedon, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958, specifically the refugee criterion (s 36(2)(a)) or the complementary protection criterion (s 36(2)(aa)). This required determining if the applicant had a well-founded fear of persecution for reasons of religion or political opinion, or a real risk of significant harm upon removal to Vietnam, as defined by sections 5J and 36(2A) of the Act. The Tribunal also had to consider the general principles regarding the assessment of evidence and the applicant's onus to satisfy the statutory elements.

The Tribunal noted that the applicant claimed to be a citizen of Vietnam and that Vietnam was their country of nationality and receiving country. It was also satisfied that the applicants did not have a right to enter any other country, thus not being excluded from Australia's protection obligations. However, the Tribunal reiterated that the mere assertion of fear does not establish its genuineness or that it is well-founded, and the applicant must satisfy all statutory elements. The Tribunal also addressed a separate application, case number 1916292, finding it to be a duplicate and thus outside its jurisdiction.

The Tribunal set aside the decision refusing to grant a protection visa in case number 1916133. It substituted this with a decision that the Safe Haven Enterprise Visa application was not valid and therefore could not be considered. For case number 2115792, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a) of the Migration Act. For case number 1910227, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(c)(i) of the Migration Act, based on membership of the same family unit as the first applicant.