Tribunal: Member Alison Murphy

The Department of Home Affairs (the Department) refused to grant the applicant a Protection visa on 28 May 2018. The applicant applied to the AAT for a review of that decision.

The applicant entered Australia in 2013 on a Student visa valid until September 2017. He was detained by the police in May 2018 and placed in immigration detention. He then applied for a Protection visa, which was refused because the delegate was not satisfied he was owed protection by Australia.

A Protection visa may be granted if the applicant can satisfy one of two criteria.[1] The first is called the ‘refugee criterion’ and broadly requires the applicant to have a ‘well-founded fear of persecution’.[2] The second is called ‘complementary protection’ grounds and broadly requires the applicant to have ‘a real risk of significant harm’.[3]

In his protection visa application, the applicant claimed that his family’s farmland was taken by the Vietnamese authorities in early 2017. He also stated that when his parents protested, they were gaoled for having anti-government views. He claimed that as a result, he was unable to afford to continue his studies in Australia, his visa expired and he could not return to Vietnam as he would suffer a similar fate to his parents. At the AAT hearing, the applicant stated that his father was arrested multiple times and was in gaol at the time of the hearing, and his mother was beaten and had fled to Hanoi while his siblings lived with their grandmother. When asked for more detail about these events, the applicant was unable to provide them.

The AAT had concerns about the applicant’s credibility and did not accept his claims because there were multiple inconsistencies between his statements at various departmental interviews, the claims he made in his Protection visa application and his evidence at the AAT hearing.

In his protection visa application, the applicant claimed that he could not afford to continue his studies due to the confiscation of the family land. However, at his protection visa interview, he stated that he stopped studying in 2014. At the AAT hearing, he stated that he stopped his studies in mid-2015. When these inconsistencies were put to him, he first claimed that his parents’ problems started in 2015 and then stated that he was unable to remember the dates. The applicant was also unable to say how much land was confiscated or why Vietnamese authorities wanted the land. Furthermore, he gave differing statements about when his parents stopped sending him money to support his studies in Australia. While it was not expected for the applicant to recall exact dates, the multiple inconsistencies in his various statements about the land confiscation and when he stopped studying caused the AAT to doubt that the applicant had ceased studying for reasons relating to his protection claim.

The AAT also noted that the applicant had delayed making a protection claim until after he was detained by the Department in May 2018, approximately three years after the alleged land dispute and almost a year after the expiration of his student visa, which caused it to doubt whether he feared harm as claimed. Further, at his compliance interview conducted a day before he lodged his protection visa application, the applicant had stated that he was willing to depart Australia, there were no reasons why he could not return to Vietnam, and requested a ticket be purchased for him. He did not mention his parent’s difficulties or the land dispute. The AAT considered these statements to indicate he did not have a fear of harm in Vietnam.

For these reasons, the AAT found that the applicant did not satisfy the criteria for a Protection visa and affirmed the Department’s decision.

 

Read the full written decision on AustLII.

 

[1] Section 36(2) of the Migration Act 1958

[2] Section 36(2)(a) and section 5H for the meaning of a refugee under the Migration Act 1958

[3] Section 36(2)(aa) and section 36(2A) for the meaning of significant harm under the Migration Act 1958