2115175 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, a citizen of Vietnam, a Protection XA subclass 866 Visa. The applicant had arrived in Australia in December 2018 and remained onshore since January 2020. A protection visa application was lodged in November 2020, which was subsequently refused by the delegate on 6 September 2021. The applicant sought merits review of this decision before the Tribunal.

The legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution for a convention reason, or faced a real risk of significant harm, such that they met the criteria for a protection visa. Specifically, the Tribunal was required to assess the applicant's claims of past criticism of government policies, potential interrogation and detention upon return to Vietnam due to alleged anti-government activities in Australia, and difficulties associated with the household registration system. The Tribunal also considered whether the applicant belonged to a particular social group, such as failed asylum seekers facing re-education or detention.

The Tribunal reasoned that the onus was on the applicant to satisfy the Tribunal that the statutory elements for a protection visa were made out, and that it was not required to make the applicant's case or uncritically accept all allegations. The Tribunal found the applicant's claims of past criticism of government policy to be general and lacking in supporting evidence, and therefore did not accept that the applicant was a political activist or government critic of interest to Vietnamese authorities. Similarly, claims regarding his wife being questioned by local cadres were found to be unsubstantiated. Regarding the fear of interrogation and detention upon return, the Tribunal noted country information indicating that while returnees might be questioned, there were no known cases of overnight detention for those returning from Australia, and detention was primarily for political views rather than seeking asylum. The Tribunal also found that the household registration system, while used for control, was not strictly enforced to prevent internal relocation. The Tribunal concluded that the applicant had not provided credible evidence to support his claims of being a person of interest to Vietnamese authorities or facing persecution for a convention reason or significant harm.

The Tribunal affirmed the delegate's decision to refuse the protection visa.