1816334 (Refugee)

The applicant, a woman from Vietnam, sought a protection visa in Australia. She claimed that upon return to Vietnam, she would face degrading treatment and discrimination due to her lifestyle choices, including having a child out of wedlock with a non-Vietnamese man. She also asserted that her mixed-race child would experience significant discrimination and that she would lack family support due to her family's migration to the United States. The Administrative Appeals Tribunal (AAT) considered her claims in light of the relevant provisions of the *Migration Act 1958* (Cth) and Ministerial Directions.

The primary legal issues before the AAT were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Act, specifically whether she had a well-founded fear of persecution for reasons of membership of a particular social group, and alternatively, whether she met the complementary protection criterion under section 36(2)(aa) by facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Vietnam. The court was required to assess the nature and level of discrimination and hardship the applicant and her child might face in Vietnam, and whether such harm would constitute "significant harm" as defined by the Act.

The Tribunal considered the applicant's claims of discrimination based on her status as a single mother of a mixed-race child and the lack of family support. It also took into account country information and guidelines prepared by government departments. However, the Tribunal concluded that the level of discrimination and hardship described did not reach the threshold of "significant harm" as contemplated by the Act, nor did it establish a well-founded fear of persecution. While acknowledging compassionate circumstances, including the child's Australian citizenship and the absence of contact with the father, the Tribunal found these factors insufficient to grant a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa. However, it referred the matter to the Department for consideration of whether it should be brought to the Minister's attention, indicating that the circumstances might warrant ministerial intervention.