1727812 (Refugee)

The applicants, who arrived in Australia in June 2006, sought a protection visa. The dispute concerned whether they met the criteria for such a visa, specifically whether they were refugees within the meaning of the *Migration Act 1958* (Cth). The matter came before the Administrative Appeals Tribunal (AAT) for review of the Department's decision to refuse their application.

The primary legal issue before the Tribunal was to determine if the first applicant held a well-founded fear of persecution for reasons of political opinion, as defined by section 5J of the *Migration Act*. This involved assessing whether the first applicant's membership in Viet Tan, his online political activism against the Vietnamese government, and his association with prominent Viet Tan members constituted a genuine fear of persecution that would lead to serious harm, and whether such persecution would be systematic and discriminatory. The Tribunal also considered whether effective protection measures were available to the applicants in Vietnam.

The Tribunal applied the principles outlined in Ministerial Direction No. 84, considering the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'. It examined the extensive evidence provided by the applicants, including photographs of protests, statements detailing their political activities and fears, and social media evidence. The Tribunal was satisfied that the first applicant's fear of persecution was well-founded, stemming from his political opinions and activities, and that he would be unable or unwilling to avail himself of the protection of Vietnam due to this fear.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the criterion set out in section 36(2)(a) of the *Migration Act*, finding that Australia had protection obligations towards them.