1805008 (Refugee)

The applicant, a Vietnamese national, sought a protection visa, claiming he feared persecution in Vietnam due to his religious activities and leadership role in the Catholic Church, his past attention from authorities, and his status as a failed asylum seeker. The dispute centred on whether Australia had protection obligations towards him under the Migration Act 1958 (Cth), specifically under the refugee criterion or complementary protection grounds. The matter came before the Administrative Appeals Tribunal (AAT) for reconsideration.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Act, which concerns protection obligations under the Refugees Convention, or under section 36(2)(aa), relating to complementary protection. This involved assessing the applicant's well-founded fear of persecution for reasons of religion or political opinion, the risk of significant harm upon return, and the impact of a departmental data breach on his claims. The Tribunal was required to consider the applicant's profile as a religious activist, his past interactions with Vietnamese authorities, his departure from Vietnam, and country information regarding the treatment of failed asylum seekers and religious practitioners in Vietnam.

The Tribunal considered the impact of a departmental data breach, acknowledging the High Court's decision in *MIBP v SZTZI* which held that the extent of access to information in such breaches was often unknowable. While accepting that Vietnamese authorities may have become aware of the applicant's detention and irregular arrival, the Tribunal found that this information would likely be apparent upon his return regardless of the breach. Crucially, the Tribunal found that the applicant, a leader in his local church, had come to the attention of authorities in Vietnam and that since his departure, his home had been under surveillance. Despite his lawful departure using his own passport, the Tribunal was satisfied that there was a real chance he would be perceived as a threat to the Communist Party of Vietnam's authority due to his religious role and past conduct. The Tribunal concluded that the applicant's fear of harm due to his religion and imputed political opinion was well-founded and that he would not be able to avoid persecution by relocating within Vietnam.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion set out in section 36(2)(a) of the Migration Act, finding that Australia had protection obligations towards him under the Refugees Convention.