1816334 (Refugee)

[2024] AATA 4307

1816334 (Refugee) [2024] AATA 4307 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816334

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Patrick Francis

DATE:15 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 April 2024 at 4:28pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – membership of particular social group – single mother of mixed-race child – no family, social or community support – discrimination in housing and employment – medical conditions and treatment, and availability and quality of healthcare – consent to decision without hearing – country information – level of discrimination does not reach serious or significant harm – compassionate circumstances – child an Australian citizen – no current contact with father – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417, 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam applied for the visa on 6 July 2017. The delegate refused to grant the visa on the basis that whilst country information indicated that there is a degree of societal discrimination directed towards single mothers in Vietnam, the applicant is not at risk of harm from the authorities or wider community due to being a single mother; similarly her child is not in danger of harm due to being without a father.  The delegate was not satisfied that there was a real chance that the applicant would suffer serious harm for reasons relating to her status as a single mother in Vietnam. Accordingly the delegate was not satisfied that the applicant was a refugee or a person in respect of whom Australia has protection obligations per s.36(2)(a). The delegate further found that the harm claimed by the applicant was not significant harm within the meaning of s.36(2A) of the Act and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Vietnam, that there was a real risk the applicant would suffer significant harm. The delegate concluded that she was not satisfied the applicant was a person in respect of whom Australia has protection obligations in relation to s.36(2A).

3. The applicant was initially represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   PROTECTION VISA APPLICATION

10. The applicant is a [Age]-year-old woman who arrived in Australia in November 2013 holding a student visa. She applied for the protection visa on 6 July 2017. In the protection visa application, a copy of which was provided to the Tribunal by the applicant, she claimed that she was seeking protection in Australia and could not return to Vietnam.

11. Responses in the protection visa application form indicate that the applicant left Vietnam to study a Master degree level course in Australia in order to increase her chances of finding employment in Vietnam. She did not claim to experience harm in that country. In response to the question “Explain what the applicant thinks will happen to them if they return to that country or those countries” is written:

    [The applicant] fears returning to Vietnam because she will be subjected to degrading treatment by people in her town and from the broader community for her lifestyle and choices she has made in Australia. When this happens she will not have any family or friends to support her. Currently she is pregnant and will be giving birth on [deleted] 2018. She will be having her child out of wedlock which means she participated in premarital sex. Vietnamese people still condemn premarital sex and she will be judged poorly by the people in her hometown because of her relationship with a White Australian. The people in her town will laugh at her and her baby because she was cheated on by a White Australian. The people in her town will say nasty things about her and her baby behind their backs and call them horrible names. She herself can cope with the criticism but her baby, as the child grows up, will not be able to cope. Her baby is innocent. In addition to not having support, she will struggle to find employment as her parents and brother have recently migrated permanently to America and her sister is planning on joining them in December 2017 when her health improves. If she goes back to Vietnam, she will have no family and very few friends there to support her and her newborn baby. Her child's father has refused to be a part of their lives so she will have to raise their child on her own. Further, her child will not look like other Vietnamese children and will be discriminated against and will not grow up happy. Her child will be called "lai" (mixed race) and his/her friends will treat him/her badly not just because he/ she does not have a father, but also because he/she is not 'pure' Vietnamese and will be teased and mocked. People always ask questions about everyone's business in Vietnam and she knows they will ask her more questions because her child will not look fully Vietnamese. This will negatively effect her mental health and her child's development and wellbeing.

12. The applicant responded to a further question indicating her belief that she would be harmed or mistreated if he returned to Vietnam.

    She believes that she will be harmed and mistreated if she returns to Vietnam because she will be a single mother with a child to a Western man. She believes that women like her are looked at with disgust if the father is no longer around. Mostly she is concerned for her financial welfare and her mental health and her child's health. [The applicant] believes that unlike in Australia, women like her will experience social exclusion and isolation in Vietnam. She will be looked at like she is uneducated, lower-class and an embarrassment in society. She believes that the culture there considers women like her as an illness that can not be treated. Further, she will be returning without a qualification or experience. [The applicant] has said that in her community, if women leave to study in Australia and came back without any qualification and instead with a half Western baby, people will think of them as a disgrace and will look at their family with shame for not teaching them better. [The applicant] fears that people will talk about how she is promiscuous, how she is a 'bad girl', immoral and selfish. She will not be able to find a job or a home to rent because people will think she is of bad character. She has no proper work experience and because her family is no longer in Vietnam, she will have no support networks. She is unable to raise her baby in Vietnam on her own and at the same time be subjected to this degrading treatment and tortures.

13. Further information in the visa application form indicated that the applicant did not believe that the authorities would protect her if she returned on the basis that “she does not think the authorities of Vietnam could protect her. These are private matters and the authorities do not intervene.”

14. In response to the question of potential relocation within Vietnam is written:

    She would be able to relocate in Vietnam but no matter where she lived she would face the same kind of discrimination and will have no family or friends to support her emotionally, physically or financially. Her parents and her brother have already migrated permanently to America and her sister is planning to leave in 6 months. Because she will be a single mother and her child will be half Vietnamese and half Westerner they'll face ridicule and degrading treatment. She'll feel isolated because nobody will want to associate with her or give her a job. There are jobs in the informal sector, but these jobs are dangerous and very low paid. She is worried for her health and her child's health. She wants her child to have the same opportunities other children who are Australian citizens have. If she deprives him of these opportunities, she has stated she would not know how to live with herself. She also knows how important a mother's love is to a child's health and development and cannot separate from him.

15. Details completed in the protection visa application form indicate that the applicant was employed between November 2010 and July 2012 in an administration role in Vietnam and that she had completed a course over four years in [subject] at Ho Chi Minh City [University] in 2010. Further, that she had studied and worked casually for brief periods at [workplaces] and [job task]. The form indicated that the applicant sometimes received financial support from parents and relatives.

    PRE-HEARING CONIDERATIONS

16. On 28 November 2023 the Tribunal sent to the applicant’s authorised recipient a prehearing information form for completion and return.

17. On 8 December 2023 the [Organisation] advised the Tribunal by email that it did not represent the applicant but was facilitating correspondence on her behalf to update the Tribunal with her contact details.

18. On 13 December 2023 the Tribunal received documents by email from the [Organisation] again indicating that the [Organisation] did not represent the applicant but was facilitating correspondence on her behalf. It further set out: “The above client received a request for information ahead of her hearing. She does not have legal representation or assistance. This case is very important to her. She would like an in-person hearing, unless the Tribunal could make a positive decision on the evidence she has already provided. She does not speaking English and needs a Vietnamese interpreter at the hearing.” Documents submitted related to the applicant’s daughter, medical letters and a hospital prescription in respect of the applicant and a prehearing information form. The most recent of the medical reports being from [Dr A], dated 4 December 2023 noting three conditions. That report sets out that the applicant’s medical conditions are under control with medicines and subject to a three-monthly review with her family doctor and consultants from the [Medical Centre].

19. The applicant lodged a Certificate of Australian Citizenship in respect of her daughter.

20. In an area provided (in the prehearing information form submitted 13 December 2023) for the applicant to give more information about her claims for protection or any other reason she was afraid to return to her home country it was set out (as is written): “I’m scare to return to Vietnam because at the moment I don’t have family there. I just had my daughter here, she is Australian. She born and grown up here, I’m scare for her if she have to back with me. My health also no good. I get [medical condition] in 2020. Australia saved my life in that time. I’m so scare if the [medical condition] come back when I’m staying in Vietnam.”

21. By letter dated 12 February 2024 the Tribunal wrote to the applicant inviting her to attend a hearing scheduled for 9:00 am on 18 March 2024.

22. On 29 February 2024 the Tribunal received a completed ‘Response to hearing invitation’ form signed by the applicant. The details in that form indicated that the applicant would take part in the hearing scheduled for 18 March 2024. In part that response ticked the box “no” in respect of whether there was any issue affecting her ability to take part in the hearing (such as a health problem a disability). It was further indicated that she did not have any documents to be relied on at the hearing.

23. On 7 March 2024 the applicant’s newly appointed authorised recipient (a legal practitioner) lodged with the Tribunal an updated prehearing information form “as the applicant has changed her mind to not attend the hearing as scheduled on March 18, 2024.” In the attached prehearing information form the applicant marked the box “No, I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to hearing for my case.” In part the information on the prehearing form indicated that there were not any issues that may affect the applicant’s ability to take part in the hearing such as a health problem or disability or difficulty travelling.

24. In the section of the prehearing information form lodged on 7 March 2024 setting out: “Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?” The applicant has responded: “Due to my health conditions, I have decided not to attend the hearing on 18 March 2024 as scheduled. I would hope that the Tribunal will make a positive decision on the evidence I have already provided.”

25. The above prehearing information form also indicated that if the applicant wished to submit any further evidence it should be provided in writing as soon as possible. No further submissions have been received by the Tribunal.

26. On 3 April 2024 the applicant’s authorised recipient again lodged forms in respect of his appointment and a further copy of the above prehearing information form.

27. As set out above, the applicant had initially indicated her wish to attend a Tribunal hearing but has subsequently consented to the Tribunal making a decision on the papers without such a hearing. Taking into account the above matters and that the applicant has changed her mind in respect of attending a hearing the Tribunal is satisfied she consents to the Tribunal determining the review without her appearing before it. The Tribunal has therefore proceeded to determine the matter on the papers pursuant to s.425(2)(b) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The issue in this case is whether there is a real chance the applicant will be persecuted on return to Vietnam or, if not, there is a real risk she will suffer significant harm if she is removed from Australia to Vietnam. The following reasons the Tribunal has concluded that the decision under review should be affirmed.

29. The applicant provided a copy of her Vietnamese passport and an Australian driver’s licence to the Department. She claims to be a citizen of Vietnam and the Department has assessed her claim on that basis. The Tribunal finds that the applicant is a citizen of Vietnam and has assessed her claims accordingly against that country as her country of nationality and the receiving country.

30. The claim of a fear of persecution for a particular reason by itself does not establish that the asserted fear is genuine, well-founded or that it is for the reason claimed. Similarly, the fact an applicant claims to face a real risk of serious harm does not establish by itself that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case rather, it is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

31. The applicant’s claims arise from her circumstances which are described as a ‘single mother with a child to a Western man’, a ‘single mother to a child born out of wedlock’ and also a ‘woman who had premarital sex’. Her concerns refer to responses, views and actions of both local townspeople and the broader Vietnamese community. The applicant has stated a belief that the authorities in Vietnam could not protect her, on the basis that her concerns are private matters, however she has not claimed to fear harm from the authorities in Vietnam.

32. The Tribunal notes that the applicant’s child, being an Australian citizen, is not a party to this review application. As such it is the Tribunal’s role is to consider whether it is the applicant who faces the relevant real risk of serious harm or significant harm. The Tribunal acknowledges however that it must take into account the impact of any adverse treatment on the applicant’s child that could amount to the applicant facing a real chance of serious harm or significant harm.

1. The applicant claims her child is an Australian citizen. Taking into account the Certificate of Australian Citizenship the Tribunal accepts that claim and finds accordingly. The Tribunal further accepts the claim and finds that the applicant gave birth to that child when she was not married. The child’s Victorian Birth Certificate shows that the child’s father was born in a [Region of the world] country. Given the grant of Australian citizenship to the child at birth, the Tribunal accepts that the child’s father is now an Australian citizen. The Tribunal accepts and finds that the child would be perceived as being of ‘mixed race’ in Vietnam, as referred to in the applicant’s submissions. It does not follow however from the fact of making that finding that the Tribunal accepts the applicant’s claims in respect of harm arising from such a perception.

2. In regard to the applicant’s educational qualifications the Tribunal finds (accepting the information set out in her protection visa form) that she completed a university degree level qualification in a [subject] field, in Vietnam and has also studied an English course in Australia. Further she has two years administrative work experience in Vietnam.

3. In respect of the applicant’s personal circumstances the Tribunal accepts the details in [Dr A]’s written report and finds that the applicant underwent treatment for a [medical condition] in September 2020 and a subsequent [body part] reconstruction in early 2021 with associated [medical treatment] and that she suffers from hypertension with an irregular heart rate and reflux gastritis. The Tribunal finds that her medical conditions are recently under control with medication (as set out in the report). She is scheduled to undergo quarterly reviews with her general practitioner and specialists. The applicant has not provided medical reports or other information concerning any claimed mental health condition.

4. The applicant claims that she will be subject to a range of degrading treatment by people in her local and broader community on account of having a child out of wedlock with an Australian. A clear aspect of that claim is that her child would be perceived as of mixed race and therefore subject to greater discrimination. The applicant claims that discrimination, teasing and mocking of her and her child would negatively affect her own mental health. Those concerns extend to her financial welfare and her child’s health, particularly in the context of her claim to have no family remaining in Vietnam. Should she have to return to Vietnam with her child without an Australian qualification or experience she claims to fear judgement or condemnation from others about her character with the consequence of not being able to find a job or a home to rent. The applicant claims to have insufficient work experience or support networks in Vietnam to be able to raise a child on her own whilst subject to such ridicule. She is concerned that any jobs in the informal sector would be dangerous and low-paid. The applicant further sets out she would not know how to live with herself if her child did not have the same opportunities as other Australian citizens.

5. As is apparent from the above the applicant is also concerned about her health, particularly should there be a re-occurrence of [medical condition] which was initially treated in 2020.

   Country Information

   ‘DFAT Country Information Report: Vietnam’ Department of Foreign Affairs and Trade, 11 January 2022 (DFAT Report 2022).

   Health

   2.13 According to United Nations Development Programme data, life expectancy is 75.4 years (men 71.3 years, women 79.5 years) and health expenditure is 5.5 per cent of GDP (for context: combined men and women’s life expectancy in Australia is 83.4 years and health spending is 9.2 per cent of GDP in Australia). Economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese.

   2.14 Hospitals are organised at the ‘central’ (national), provincial and district levels, along with private hospitals that are found in urban areas. Healthcare in rural communities is provided at commune-level health centres. These centres provide basic preventative care, diagnoses and treatments, and refer people on to hospitals. Quality varies from place to place, and some centres are poorly funded and ill-equipped. Distance for people living in remote areas can be a barrier to access. Health centres are usually staffed by nurses and midwives, while some may have doctors. Hospitals are the primary place of care (rather than, for example, a general practitioner’s practice) for many Vietnamese. See also Internal Relocation for information on how place of residence and household registration can affect access to healthcare.

   2.15 The vast majority of the population is enrolled in the social health insurance scheme. The poor, ethnic minorities and elderly are fully subsidised, while others pay premiums. Healthcare is not free; a co[1]payment is required from patients, potentially along with bribes due to corruption. The co-payment is higher in central and provincial-level hospitals, but the level of care there is also higher. This may encourage those who can afford it to bypass lower-level hospitals to receive treatment. Mental health

   2.16 Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.

   2.17 Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self[1]describe as mentally unwell and seek treatment.

   2.18 The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.

   2.19 Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.

   ……….

   Women 3.71 Discrimination against women is banned by the Vietnam Constitution (article 26). The UN Development Programme 2019 Gender Equality Index (the most recent) ranked Vietnam 65th (with 1 being the most equal) out of 162 countries. Australia ranked 25th. The International Labour Organization notes on its website that women form the majority of the working poor (particularly among the informal sector), earn less income and have fewer economic, employment and education resources than do men. In-country experts told DFAT there is a large gender pay gap that is made worse and more difficult to track because so many women work in the informal sector.

   3.72 Women’s labour participation rate is one of the highest in the world at 73 per cent in 2019, according to World Bank data (Australia’s female workforce participation rate was 61 per cent in the same year). DFAT has heard from sources that some women have been fired for becoming pregnant, which may be an illegal, but nonetheless practised, condition of employment. Women over 35 may also have difficulty finding employment and DFAT is aware that some women claim that they were terminated at that age for age-related reasons. In-country sources told DFAT women have been disproportionately affected by COVID[1]19. Given their high rate of participation in the informal sector and high rates of internal migration, many women lost jobs.

   3.73 Traditional views about family disadvantage women. Son preference continues, as in other Asian countries, where the traditional view is that sons and men, rather than daughters and women, carry on the family name and traditions. The problem of ‘missing girls’ and unnaturally high numbers of male births compared to female births result. Over time these preferences are lessening (but are still present) and women can now legally inherit assets.

   3.74 Vietnam has family planning policies that theoretically restrict the number of children a woman can have. DFAT understands family planning policies are not strictly enforced and it is common for families to have more than the allowed two children. Today, there are few, if any, practical consequences for having more than two children; children would not be denied healthcare or education and their parents would not be punished.

   ……….

   Single and divorced women

   3.82 Vietnamese culture emphasises traditional family values, but some women, particularly those of higher education and means, may choose to be single. It is possible to get a document from a local authority that declares that a person is single, similar to a marriage certificate, and there are no legal barriers to being a single female-headed household.

   3.83 In practice, women who are single come under what in-country sources call ‘intense pressure’ to marry. One source described being single as ‘odd’. The SBS Cultural Atlas notes that family support is so central to Vietnamese culture that the idea of living alone or without family can be ‘intimidating’. This pressure is likely to be from families but may also be on a societal or community level. In country-sources told DFAT that many women are ‘afraid’ of being divorced due to societal and cultural factors.

   3.84 Divorce is possible but stigmatised. In-country sources told DFAT that this stigma is changing for younger people, who are more open to divorce, but DFAT assesses that the stigma is strong for most Vietnamese women. That stigma can result in family pressure and shame, but can also have economic consequences. Suitable rental accommodation may be unaffordable or not exist, particularly in rural areas because of the assumption that couples will buy property or live with their parents and in-laws.

   3.85 Poor single women may receive assistance from the authorities, for example assistance with bills or living expenses. These services may be limited by factors that limit all social welfare programs; for example, women who work in the informal sector may not receive unemployment insurance and those who are internal migrants may have difficulty accessing services where their household registration is not in the place where they live.

   3.86 DFAT assesses that single women and divorcees do not face official discrimination, but do face a moderate risk of societal discrimination.

   Terms used in this report

   high risk                DFAT is aware of a strong pattern of incidents

   moderate risk         DFAT is aware of sufficient incidents to suggest a pattern of behaviour

   low risk                DFAT is aware of incidents but has insufficient evidence to conclude they   form a pattern

   societal discrimination 1. behaviour by members of society (including family members, employers or service providers) that impedes access by a particular group to goods or services normally available to other sections of society (examples could include but are not limited to refusal to rent property, refusal to sell goods or services, or employment discrimination) 2. ostracism or exclusion by members of society (including family, acquaintances, employers, colleagues or service providers)

6. The unemployment rate in Vietnam was recorded at 2.3% for the second quarter of 2023 with average income for workers increasing by 6.9% in 2023 (Trading Economics –

7. On the basis of the above DFAT Report 2022 the Tribunal finds that there is no legal impediment to being a single female-headed household in Vietnam. The Tribunal further finds that the applicant would not be subject to official discriminatory behaviour on the basis of her status as a single mother, an unwed mother or a mother of a mixed race child.

8. The Tribunal accepts the applicant’s claims that she or her child could be teased or mocked in Vietnam by some community members on account of her having had pre-marital sex, a child out of wedlock, a child with an Australian when not married or on account of the child’s appearance. Acknowledging that the applicant has made a reference in her submissions to mental health, the information before the Tribunal does not reflect that the applicant has any particular mental health circumstances which would make her more vulnerable to such taunts or behaviour. On the limited information before it the Tribunal does not accept that teasing, mocking or some degree of social isolation/ exclusion on account of having had a child out of wedlock (regardless of iteration) or on account of the child’s appearance would amount to serious harm or significant harm.

9. In respect of the claims concerning access to employment and rental accommodation the DFAT Report indicates that there are sufficient incidents “to suggest a pattern of behaviour” by members of society to impede access to services such as rental properties and access to employment for single mothers or unmarried women. That assessment is to be differentiated from one in which there are “a strong pattern of incidents” that the Department is aware of. The Tribunal accepts that evidence.

10. Participation by women in the labour market in Vietnam is one of the highest in the world (DFAT Report at 3.72). As referred to above it also has a low unemployment rate of approximately 2.3%. The Tribunal finds accordingly.

11. The Tribunal has taken account of the applicant’s reference to difficulties in the informal sector however, on information before it, the applicant has a tertiary degree and accordingly the Tribunal finds that the applicant’s job prospects are not limited to the informal employment sector. The Tribunal has found that the applicant has a degree level qualification from Vietnam of four years duration in [subject]. That undergraduate degree means she is not without qualifications to assist her in obtaining employment. She has also studied English in Australia. The Tribunal does not accept the claim that the applicant would be perceived as uneducated or lower class.

12. Nor would the applicant be limited to work or accommodation in rural areas. The Tribunal accepts that the applicant may face some level of discrimination in employment in Vietnam however unemployment in that country is low and the Tribunal does not consider that some level of discrimination in the community would exclude the applicant from all suitable employment opportunities. The Tribunal does not accept that there is more than a remote chance that the applicant would be denied access to employment opportunities on the basis of being an unmarried mother or the mother of a mixed race child such that she would remain unemployed and unable to afford accommodation.

13. The Tribunal accepts that the applicant may be subject to some discrimination in relation to available rental properties in Vietnam on account of being a single mother or mother of a mixed race child. Some landlords may choose to exclude her from consideration on the basis of those characteristics. It does not follow however that some level of discrimination in the community excludes the applicant from all appropriate rental properties. The Tribunal does not accept that there is more than a remote chance that the applicant would be denied access to any appropriate accommodation on the basis of being an unmarried mother or the mother of a mixed race child.

14. The Tribunal does not accept on the information before it that the applicant would be subject to adverse treatment in Vietnam simply because she arrived in Australia to achieve a master’s degree course and did not complete it. It is not apparent how others would know of that, taking into account the applicant’s evidence that she has no family members remaining in Vietnam. The Tribunal does not accept that the applicant might be denied employment or rental opportunities or face other consequences for not having completed the master level qualification. Even should others be aware of her failure to complete the qualification, the Tribunal is not satisfied that any adverse response would be more than comments or inferred criticism. The Tribunal does not accept that any such comments in respect of the applicant’s failure to complete the master degree qualification would amount to serious harm or significant harm.

15. It is apparent the applicant has concerns regarding her health and that of her child should they depart to Vietnam. As is referred to above the applicant was previously treated with surgery for [medical condition] which is now under control with medication and subject to 3 monthly reviews. She is concerned about a re-occurrence of that [medical condition]. She has two other stated medical conditions. The evidence before the Tribunal does not indicate the applicant’s daughter has any particular medical conditions or is undergoing medical treatment. Whilst the Tribunal understands the applicant would prefer to remain in Australia should any further treatment be necessary the Tribunal must assess whether she meets the criterion for the grant of the visa. In this respect the country information available to the Tribunal does not indicate that health services would be withheld from the applicant or her child on the basis of being a single mother or for being an unwed mother of a mixed race child or other similar iteration. The Tribunal does not accept that any fear in this regard is well-founded.

16. The Tribunal has also considered whether cumulatively the applicant’s claims would amount to a real chance of serious harm or significant harm. The Tribunal has accepted that the applicant may face a level of societal discrimination, social isolation, teasing or mocking in Vietnam on account of being a single mother or unwed mother of a mixed race child. She could also face similar criticisms on the basis of having had premarital sex. It is possible she might face some adverse comments on account of her failure to complete a degree in Australia. The Tribunal accepts that the applicant’s child might also be subject to some level of mocking or teasing on account of mixed race and that the applicant would be unhappy about this. Taking into account those matters cumulatively the Tribunal does not accept there to be a real chance that the applicant would face serious harm or significant harm if she returns to Vietnam, now or in the reasonably foreseeable future. It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act.

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

18. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal has not accepted that the applicant would be perceived as uneducated or of lower class or that the applicant would be limited to work or accommodation in rural areas. The Tribunal has accepted that the applicant may face some level of discrimination in employment or rental opportunities in Vietnam however unemployment in that country is low and the Tribunal does not consider that some level of discrimination in the community would exclude the applicant from all suitable employment or rental opportunities. The Tribunal has not accepted that there is more than a remote chance that the applicant would be denied access to employment or rental opportunities on the basis of being an unmarried mother or the mother of a mixed race child, or similar description such that she would remain unemployed and unable to afford or access accommodation. The Tribunal has not accepted that the applicant or her child would be denied medical services in Vietnam and has also set out its reasoning above concerning claims as to the applicant’s mental health. The Tribunal is not satisfied either individually or cumulatively that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Vietnam, there is a real risk that she would suffer significant harm.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   Ministerial intervention

2. The Tribunal has had regard to the Ministerial Guidelines on ministerial powers relating to the Minister’s discretionary power under s.417 of the Act. In part 4 of those Guidelines, the Minister states that the following cases should be brought to his attention:

   Cases that have one or more unique are exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

   ·Strong compassionate circumstances that if not recognise would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, or at least one member of the family is an Australian citizen or Australian permanent resident;

   ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

3. The applicant’s daughter is an Australian citizen as evidenced by the Certificate of Australian Citizenship lodged with the Tribunal. She is currently [Age] years of age and, as submitted by the applicant, has no current contact with her father. The applicant has concerns that, if she returns to Vietnam the child will face disadvantages and not have the same opportunities as other Australian citizens.

4. Taking into account the above the Tribunal considers that this matter should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances of a kind that the Minister has indicated should be brought to his attention.

   DECISION

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

   Patrick Francis
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …