1825698 (Refugee)

The case concerned an application for a protection visa by Ms A, a national of Vietnam, who claimed to fear harm from her ex-husband. The Administrative Appeals Tribunal (AAT) had previously considered her claims. The matter came before the Federal Circuit and Family Court of Australia for review of the AAT's decision.

The primary legal issue before the court was whether the AAT had erred in its assessment of Ms A's claims, specifically concerning the risk of significant harm she faced upon return to Vietnam. This involved determining whether the protection available in Vietnam was sufficient to mitigate any real risk of significant harm, as contemplated by section 36(2B)(b) of the Migration Act 1958 (Cth).

The court considered the evidence of Ms A's history of long-term family violence, including specific instances of threats and abuse by her ex-husband, who continued to reside with her former mother-in-law and depend on her for support. The court applied the principles established in cases such as *MIAC v MZYYL* and *ABAR15 v MIBP (No 2)*, which require an assessment of the source and nature of the harm, the availability and effectiveness of state protection, and whether, even with protection, a real risk of significant harm would persist. The court found that the AAT had not adequately considered the systemic and long-term nature of the family violence and its potential to constitute significant harm.

Consequently, the court remitted the matter to the AAT for reconsideration, with a direction that Ms A satisfies section 36(2)(aa) of the Migration Act 1958.