2213692 (Refugee)

This matter concerned an application for review of a decision to refuse a Protection visa. The applicant, who claimed to be stateless, sought to establish that he would face a real risk of significant harm if returned to Vietnam, either under the refugee criterion or the complementary protection criterion. The Tribunal was required to determine whether the applicant was stateless or a national of Vietnam, and if not a national of Vietnam, whether he would face persecution or significant harm upon return.

The court was required to determine two primary legal issues. First, whether the applicant was stateless or, alternatively, a national of Vietnam. Second, if the applicant did not meet the refugee criterion, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Vietnam, he would suffer significant harm, thereby meeting the complementary protection criterion. The applicant argued that if stateless, he would have no rights in Vietnam, and his past criminal convictions and family's political opposition would expose him to harm. Alternatively, if considered a Vietnamese national, his family's and his own opposition to the Communist government, his participation in protests, his brother's activism, his illegal departure from Vietnam, and his criminal history would place him at risk of serious harm.

The Tribunal considered the applicant's claims regarding his statelessness and his potential grounds for complementary protection. It noted that the applicant lacked documentary evidence of his birth and that his date of birth was an estimate. The Tribunal also acknowledged the applicant's arguments concerning his lack of rights in Vietnam and the potential adverse attention from Vietnamese authorities due to his criminal convictions and his family's political stance. However, the Tribunal concluded that it lacked the power to consider issues arising under s 36(2C) of the Act, which relates to ineligibility for a protection visa. Consequently, the matter was remitted to the Department for reconsideration, including consideration of the applicant's potential ineligibility under s 36(2C).