1932239 (Refugee)

The case concerned two child applicants, identified as J and A, who sought protection visas. Their claims were based on fears of persecution in Vietnam due to their Roman Catholic faith, their mother's political activities, their parents' illegal departure from Vietnam, and specific concerns regarding A's severe food allergies and the unavailability of necessary medication in Vietnam. The applicants' father had previously been deported to Vietnam. The matter was before the Tribunal following a remittal from the Federal Circuit Court.

The primary legal issues before the Tribunal were whether the first applicant, J, met the criteria for a protection visa, and if not, whether he was entitled to complementary protection. Additionally, the Tribunal had to consider the validity of the second applicant's, A's, application and whether it could be assessed similarly to J's. The Tribunal was required to consider the applicants' claims in light of the Migration Act 1958, including the definitions of "refugee" and "well-founded fear of persecution," as well as Ministerial Direction No. 84 and the Protection Visa Processing Guidelines concerning minors.

The Tribunal reasoned that for a risk of harm to be considered a real risk of significant harm under section 36(2B)(c) of the Act, it must not be a risk faced by the population generally. The Tribunal applied the principles that a well-founded fear of persecution involves both subjective and objective elements, and that when assessing minors, greater weight should be given to objective factors, with consideration of the parents' circumstances. The Tribunal noted that while the applicants' mother gave evidence on their behalf, the children themselves provided only basic information due to their tender years. Ultimately, the Tribunal was not satisfied that either applicant was a person in respect of whom Australia had protection obligations.

The Tribunal affirmed the delegate's decision not to grant the applicants protection visas. Consequently, the applicants were found to not satisfy the criteria for a protection visa under section 36(2)(a) or (aa) of the Act, and therefore could not satisfy the criteria under section 36(2)(b) or (c).