1808690 (Refugee)

The applicant, a transgender woman from Vietnam, sought a protection visa in Australia. The dispute concerned whether Australia owed her protection obligations under the Migration Act 1958 (Cth). The matter was before the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa) of the Migration Act. This required the Tribunal to assess whether the applicant would be at risk of significant harm if returned to Vietnam, and whether any such risk was personal to her rather than faced by the general population. The Tribunal also considered the provisions of section 36(2B) which outline circumstances where Australia does not have complementary protection obligations, including the availability of internal relocation, protection from authorities, or if the risk is faced generally by the population.

The Tribunal considered evidence regarding the applicant's experiences in Vietnam, including discrimination and abuse due to her gender identity and sexual orientation, and her parents' rejection of her. It noted that Vietnamese law does not recognise the rights of gay people, and that she feared she would not be safe, would be ostracised, and would have limited employment prospects and access to necessary healthcare if returned. The Tribunal applied Ministerial Direction No. 84, taking into account relevant guidelines and country information.

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