2003091 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, who entered Australia using a fraudulent passport, claimed to fear returning to Vietnam due to coercion and threats from a criminal gang. The applicant alleged that the gang had previously kidnapped him and that he did not believe the Vietnamese government could protect him.

The central legal issue before the Tribunal was whether the applicant's claims invoked Australia's protection obligations under sections 36(2)(aa) or 36(2)(aa) of the Migration Act 1958. This required the Tribunal to assess the credibility of the applicant's claims, particularly in light of new information presented at the hearing that had not been raised with the original decision-maker. The Tribunal also had to consider the provisions of section 423A of the Act, which mandates adverse inferences regarding new claims or evidence presented without a reasonable explanation for the delay.

The Tribunal reasoned that the applicant's claim of having been kidnapped by the gang, introduced for the first time at the hearing, was inconsistent with his earlier statement to the delegate that nothing had happened to him yet, which was used to explain why the police had not acted. The Tribunal found that the applicant had not provided a reasonable explanation for not raising the kidnapping incident earlier, leading to the application of section 423A. This section required the Tribunal to draw an adverse inference about the credibility of the new evidence. Consequently, the Tribunal concluded that the applicant's claims might be untruthful and that he did not satisfy the criteria for a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa.