2008406 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa for Australia, who had previously entered on a 457 visa. The applicant claimed that if returned to Vietnam, he faced arrest and harassment due to his membership and financial support of an organisation advocating for democracy and criticising the Vietnamese government. He also alleged his family in Vietnam could be harmed and that he was a victim of injustice in Australia.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he qualified as a refugee under section 36(2)(a) of the Migration Act 1958, or alternatively, whether there were substantial grounds to believe that his return to Vietnam would pose a real risk of significant harm, as per section 36(2)(aa) (complementary protection). The applicant's claims included fears of interrogation, torture, killing, and kidnapping, as well as harm to his family, stemming from his activism and criticism of the Vietnamese government. He also asserted that he could not relocate within Vietnam to avoid such harm and that Vietnamese authorities would not protect him.

The Tribunal considered the applicant's claims in light of the 'Refugee Law Guidelines', 'Complementary Protection Guidelines', and country information. It noted that the applicant did not claim to have experienced harm in Vietnam prior to his departure. The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) of the Act.