2009727 (Refugee)

The applicant, a citizen of Vietnam, sought review of the Administrative Appeals Tribunal's decision to affirm the refusal of her protection visa application. The applicant arrived in Australia in September 2010 and remained in Australia unlawfully until granted a bridging visa in March 2019, with her protection visa application lodged in February 2019. The core of the dispute concerned whether the applicant met the criteria for a protection visa, either as a refugee or by establishing a real risk of significant harm upon return to Vietnam.

The Tribunal was required to determine if the applicant possessed a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by the Migration Act 1958. Additionally, the Tribunal had to consider whether, in the absence of refugee status, there were substantial grounds to believe that the applicant faced a real risk of suffering significant harm as a necessary and foreseeable consequence of her return to Vietnam, encompassing arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment. The Tribunal also considered whether the applicant was eligible to apply as a member of her sister's family unit.

The Tribunal found that the applicant's claims were brief and general, focusing on a lack of freedom and human rights in Vietnam and her fear of personal harm and persecution for speaking against the government. However, the Tribunal noted that the applicant had not engaged in any political activity in Australia, had no contact with any religious or human rights activist groups since departing Vietnam, and made no claim based on her religion. Her departure from Vietnam and renewal of her passport were without hindrance. The Tribunal also considered her reliance on a former partner for a partner visa, which did not materialise, and her current living situation with her sister, concluding she was not eligible to apply as a member of her sister's family unit. The Tribunal applied the relevant provisions of the Migration Act and Ministerial Direction No. 84, including the Refugee Law Guidelines and Complementary Protection Guidelines, and country information.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that she did not satisfy the criterion for being a refugee under section 36(2)(a) of the Migration Act.