1730101 (Refugee)

The Administrative Appeals Tribunal (AAT) considered whether a Vietnamese national was entitled to a protection visa. The applicant had previously had a subclass 457 visa application refused, which was affirmed by the Migration Review Tribunal (MRT) after it found that educational documents submitted were bogus. The applicant subsequently made a request for ministerial intervention and lodged a partner visa application. The core dispute before the AAT was whether the applicant met the criteria for a protection visa, either as a refugee or under complementary protection provisions, or if she was a member of the same family unit as someone who met these criteria.

The legal issues before the Tribunal were whether the applicant was a refugee within the meaning of the Act, and alternatively, whether she met the criteria for complementary protection. The Tribunal was also required to consider if the applicant was a member of the same family unit as a person who qualified for protection. The applicant's claims were based on her alleged political opinions, specifically anti-communist views, and her membership and activities with the Viet Tan organisation, which she reportedly shared on social media. The Tribunal also had to assess the credibility of the applicant's claims, particularly in light of the previous finding by the MRT that she had submitted bogus documents.

The Tribunal found that the applicant did not meet the refugee criterion under section 36(2)(a) of the Act. However, it concluded that she did meet the alternative criterion for complementary protection under section 36(2)(aa). This finding was made after considering the evidence presented, including a high volume of photographic evidence, and assessing the applicant's conduct in relation to strengthening her claims. The Tribunal noted that the applicant had engaged in conduct for the purpose of strengthening her claims and that there were credibility issues to consider, including a delay in applying for protection and numerous anti-Vietnam government and anti-communist Facebook postings.

The Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa). Consequently, the Tribunal remitted the matter for reconsideration.