2010154 (Refugee)

This case concerned an application for a protection visa by a citizen of Vietnam. The applicant arrived in Australia in 2010 and subsequently entered into a relationship with an Australian man, with whom she had a daughter. Following the cancellation of her student visa and the breakdown of her relationship, the applicant's former partner initiated Family Court proceedings, resulting in orders preventing her from removing their daughter from Australia and placing them on the Family Law Watchlist. The applicant's claim for a protection visa was based on her alleged membership of a particular social group as a "single mother in Vietnam" with a bi-racial child, a claim she made following advice from migration lawyers. The Administrative Appeals Tribunal (AAT) reviewed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant was a person to whom Australia owed protection obligations, specifically whether she met the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth). This involved determining if she had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if she faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also considered the applicant's claim of flawed legal advice received regarding her visa applications.

The Tribunal affirmed the decision not to grant the protection visa. It found that the applicant did not satisfy the criteria under section 36(2) of the *Migration Act 1958* (Cth). While acknowledging the applicant's difficult circumstances, including the Family Court orders and the advice she received, the Tribunal concluded that these factors did not establish a basis for protection obligations under the Act. The Tribunal noted that there was no suggestion the applicant satisfied the criteria as a member of the same family unit as a person who held a protection visa.

Consequently, the Tribunal affirmed the decision under review. However, it referred the matter to the Minister for Immigration and Border Protection to consider exercising his discretion to grant the visa on compassionate and compelling grounds, given the specific circumstances of the case.