2016755 (Refugee)

This case concerned an application for a protection visa by a mother and her child, both nationals of Vietnam. The applicants claimed they would face persecution and harm if returned to Vietnam due to the mother's Catholic faith and her actual and imputed political opinions. The applicant child also claimed harm due to his relationship with his mother and the lack of Vietnamese documentation preventing access to essential services. The Tribunal considered the claims against Vietnam as the receiving country.

The legal issues before the Tribunal were whether the applicants qualified as refugees under section 5H of the Migration Act 1958, or alternatively, whether Australia had protection obligations towards them under the complementary protection criterion in section 36(2)(aa) of the Act. This involved assessing whether there was a real chance of persecution or significant harm for reasons of religion, political opinion, or membership of a particular social group, and whether effective protection was available in Vietnam.

The Tribunal found that the applicant mother had a well-founded fear of persecution for the combined reasons of her Catholic religion and her political opinion. It accepted her evidence that she was actively involved in organising youth protests against the Vietnamese authorities in 2012-2013 following a conflict between the state and the Catholic Church. Despite some minor inconsistencies in her evidence, attributed to her youth, lack of English, and the passage of time, the Tribunal found her to be a credible witness whose claims were consistent with country information. The Tribunal also found that the applicant child had a well-founded fear of persecution due to his membership in his mother's family unit, given the real chance of serious harm to his mother if returned.

The Tribunal concluded that both the applicant mother and the applicant child were persons in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that each applicant satisfies the refugee criterion.