1611309 (Refugee)

This matter concerned an appeal by a woman from Vietnam against the Tribunal's decision to affirm the refusal of her protection visa application. The applicant arrived in Australia in March 2010 on a temporary visa which expired a month later, and she remained in Australia unlawfully. She was arrested in May 2015, held in criminal detention until June 2016, and subsequently held in immigration detention. She claimed to fear returning to Vietnam due to her violent husband, who allegedly threatened to kill her or force her into prostitution, and also threatened their child. She asserted that Vietnamese authorities would not protect her due to her family's history of opposition to communism. The delegate had refused her application, finding her claims not credible due to inconsistencies and delay in seeking protection.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the *Migration Act 1958* (Cth) concerning a well-founded fear of persecution, or alternatively under section 36(2)(aa) regarding complementary protection due to a real risk of significant harm. The Tribunal was required to consider the applicant's claims in light of the relevant policy guidelines, country information, and the statutory definitions of persecution and significant harm.

The Tribunal found that the applicant's stated intention upon arrival in Australia was to overstay her visa to work and send money to Vietnam, which she conceded. While she also claimed to have left to escape her violent husband, the Tribunal concluded that this intention was not the primary reason for her arrival and subsequent overstay. The Tribunal noted that the applicant remained in contact with her husband and that her claims of fear were not sufficiently credible to satisfy the criteria for a protection visa. Consequently, the Tribunal affirmed the delegate's decision.

The Tribunal ordered that the decision under review be affirmed, meaning the applicant was not granted a protection visa.