2007484 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an unlawful non-citizen from Vietnam who sought a protection visa. The applicant claimed to be an anti-government political activist and asserted that Australia had protection obligations towards him. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa, either under the 'refugee' criterion or the 'complementary protection' criterion.

The central legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) due to a well-founded fear of persecution, or alternatively, whether he faced a real risk of significant harm as a consequence of removal to Vietnam, thereby engaging the complementary protection criterion under section 36(2)(aa). The Tribunal also had to consider the applicant's credibility and the relevance of his delay in lodging his protection application and his subsequent criminal conviction.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It noted that the applicant had legally departed Vietnam and had obtained a valid Vietnamese passport while in Australia, which did not support a claim of being unable or unwilling to avail himself of the protection of his country of nationality. Furthermore, the applicant had declined the opportunity to provide oral evidence or present further arguments at a hearing, consenting to the Tribunal proceeding on the available material. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa.