2008893 (Refugee)

The decision concerned an application for a protection visa by individuals who claimed to be members of the Cao Dai Religion in Vietnam. The applicants arrived in Australia in August 2019 and claimed they were under surveillance and feared persecution due to their religious affiliation, alleging they were suspected of being anti-communist. They further asserted that relocation within Vietnam was not possible due to the household registration system and that they were "black-listed," preventing access to state protection. The Tribunal considered the claims and evidence in accordance with Ministerial Direction No. 84 and relevant guidelines.

The primary legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958, and if there was a real chance of such persecution upon return to Vietnam. Alternatively, the Tribunal had to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Vietnam, the applicants faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

The Tribunal noted that the applicants did not attend a scheduled hearing, despite being invited to do so. The Tribunal applied the established legal principles concerning the assessment of a "real chance" of persecution, which it equated to the "real risk" test applicable to significant harm under section 36(2)(aa) of the Act, referencing the reasoning in *MIAC v SZQRB* (2013) 210 FCR 505. After considering the available material, including country information, the Tribunal found that the applicants did not satisfy the criteria for a protection visa under section 36(2) of the Act, nor did they satisfy the criteria for complementary protection under section 36(2)(aa). The Tribunal also found no basis for the applicants to satisfy the criteria as members of the same family unit as a person who met the protection visa requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicants a protection visa.