2210048 (Refugee)

The applicant sought a protection visa, claiming he feared persecution in Vietnam due to his activism for democracy and human rights, and also faced threats from loan sharks. The dispute before the Administrative Appeals Tribunal (AAT) concerned whether the applicant met the criteria for a protection visa, either as a refugee or by qualifying for complementary protection. The applicant had arrived in Australia in March 2008 and had overstayed his student visa for approximately nine years, with the visa expiring in 2013.

The legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 5H of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. If the applicant did not meet the refugee criterion, the Tribunal was required to consider whether he qualified for complementary protection under section 36(2)(aa) of the Act, which involves a real risk of suffering significant harm as a necessary and foreseeable consequence of removal to Vietnam.

The Tribunal considered the applicant's claims of activism against the communist regime and threats from loan sharks. It also took into account Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines. The Tribunal concluded that the applicant did not satisfy the criterion for a protection visa. The decision under review was affirmed.