1803217 (Refugee)

The applicant, a citizen of Vietnam and an irregular maritime arrival, sought review of the Minister's decision to refuse to grant a Protection (Class XA) visa. The matter had been remitted to the Federal Court by the Full Federal Court. The central dispute concerned whether the applicant held a well-founded fear of persecution for reasons of political opinion or membership of a particular social group.

The court was required to determine whether the applicant's fear of persecution, if any, was based on his political opinion, specifically whether his alleged anti-authorities stance, despite lacking a profile as a political activist, constituted a political opinion for the purposes of the *Migration Act 1958* (Cth). Furthermore, the court had to consider whether the applicant belonged to a particular social group, defined as successful self-employed tradesmen or people without *ho khau* (household registration) in Vietnam, and if such membership would expose him to a well-founded fear of persecution. The court also had to consider the impact of a departmental data breach on the assessment of the applicant's claims.

Justice Packer found that the applicant did not hold a political opinion that would engage the protection provisions. However, his Honour determined that the applicant was a member of a particular social group, specifically "people without *ho khau* in Vietnam," and that he had a well-founded fear of persecution on that basis. The court concluded that the Minister's decision to refuse the Protection (Class XA) visa was affected by jurisdictional error due to the failure to properly consider the applicant's claim as a member of a particular social group.

The court set aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.