1506958 (Refugee)

[2017] AATA 1193

1506958 (Refugee) [2017] AATA 1193 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506958

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Luke Hardy

DATE:18 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2017 at 11:41am

CATCHWORDS
Refugee – Protection visa – Vietnam – Social group – Lesbian – Previous family disapproval – No longer dependent on parents - Family and social conditions existed previously - Much improved social and legal developments in recent years – Credibility – Evidence confused and inconsistent - Effective state protection – Relocation an option

LEGISLATION

Migration Act 1958, ss. 36(2)(a), (aa), (b), or (c), 65, 499

Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIAC v SZQRB [2013] FCAFC 33

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 dependant.

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, [name], is a citizen of Vietnam. Her protection visa application relates to her status as a lesbian who is in a relationship with another Vietnamese citizen, [Ms A] (AAT MRD case # 1506960).

3.    [The applicant] first entered Australia [in] September 2011 on a [temporary] visa valid to [date] June 2014. She departed Australia [in] December 2011 and re-entered [in] January 2012. She departed Australia again [in] September 2011 and re-entered [in] Feb 2013. She departed once more [in] Dec 2013 and re-entered [in] Feb 2014. Evidence in the passport she submitted to the Immigration Department shows that she visited Vietnam for the duration of her various absences from Australia. Photographs submitted in the case of [Ms A] and presented to this Tribunal by [the applicant] herself provide evidence of their having travelled, stayed and gone sightseeing together in Vietnam during each of those visits.

4.    [The applicant] was granted a bridging visa in connection with another application [in] May 2014. The bridging visa expired [in] July 2014. She apparently overstayed that visa [number] days and lodged a protection visa application [in] July 2014. The Minister’s delegate refused to grant the visa [in] May 2015. [The applicant] subsequently sought review by the Refugee Review Tribunal, which merged into the AAT on 1 July 2015.

5.    [The applicant] appeared before the Tribunal on 7 April 2017 to give evidence and present arguments in a joint hearing. She was accompanied by her adviser, a registered migration agent. The Tribunal also received oral evidence from [the applicant]’s [family member], [Ms B], and from [Ms A] (1506960). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issues

6.    The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, in the event that she is not, on complementary protection grounds.

7.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Claims to the Department

8.    In her 2014 protection visa application, [the applicant] claimed to have been born in Ho Chi Minh City where she lived at the same address from January 2000 to September 2011, when she came to Australia. She later described this as her family home. She claimed to have had no employment history in Vietnam as she had been a student prior to coming to Australia. She claimed to have travelled in Asia including [Country 1] for short visits over the years before she came to Australia.

9.    [The applicant] claimed that she came to Australia to pursue studies and freedom. She claimed not to have suffered relevant harm in Vietnam in the past, but stated that she feared not being able to maintain her relationship with her partner [Ms A] in future, owing, she claimed, to the fact that authorities in Vietnam would not protect her from her family or other members of society who would be hostile towards openly gay and lesbian people in Vietnam. She claimed her relationship will be perceived as a dishonour upon her family. She claimed she will be deprived of rights and not be able to subsist in Vietnam due to her lesbian/LGBT sexual orientation. She reiterated that she feared future harm from her family, close relatives and society in general. She said openly gay/lesbian relationships are not tolerated in Vietnam.

1. [The applicant] was evidently a [course] student at [College 1] in Ho Chi Minh City from February [year] up until September [year] when she came to Australia. Her college in Australia was also [College 1]; she studied there from October [year] and indicated she was still studying there as at the time of her protection visa application. She later claimed that when she revisited Vietnam from Australia between December 2013 and February 2014, the purpose of the trip was to complete a module for her [name] studies course at [College 1].

Submissions to the Department

1. [The applicant] submitted a statutory declaration to the Department, along with a large number of documents attesting to joint financial and insurance involvement with [Ms A]. She provided extensive evidence of telephone message conversations (SMS chat) with [Ms A] over periods when they were separated by distance ([Ms A] evidently did not arrive in Australia until July 2013). She also submitted some media articles about conditions for LGBT persons in Vietnam. Some of the older items, dating back to 2009, report fear of family ostracism, discrimination at school and in government workplaces, and some institutional and societal alienation hanging over even after homosexual orientation ceased to be scheduled as a mental disorder in 2001. More recent reporting included in the submission (see DIBP file at f.45) indicates tolerance amongst some families in regard to their children’s LGBT orientation. Another report dating back to 2007 sites a survey of students in Vietnamese schools with most students indicating a tolerance of LGBT orientations and identities and, in particular, 72% of students stating, at least, that they remained friends with LGBT students who had “come out” (f.47 of the DIBP file). Whereas there are some reports of bullying of LGBT pupils in schools, there are others observing that “open homosexuality in schools appears to be on the rise” (f.47). Generally the material [the applicant] submitted showed some observed improvements in societal attitudes towards LGBT people in Vietnam but also argued that since prejudices were so old, particularly but not solely in rural environments, there was still much room for improvement.

2. In her statutory declaration, dated [in] April 2015, [the applicant] said she had considered herself lesbian since the age of [age]; that would have been around 2006. She said her parents do not tolerate her sexual orientation.

3. Appearing to contradict evidence in her protection visa application form, [the applicant] said her parents harmed her on a number of occasions in the past in Vietnam. In particular, she said they restricted her freedom and subjected her to beatings. She claimed her parents found out about [Ms A] and engaged the police to harass her. She claimed [Ms A] was once detained for [number] hours and released only upon pretending to renounce their relationship. [The applicant] claimed she attempted suicide with sleeping pills and was hospitalised. She claimed [Ms A] encouraged her to flee Vietnam. She claimed: “My partner and I made plans to escape to Australia in 2011.” She claimed that the prompting of [Ms A] was the reason she applied for a [temporary] visa in Australia. She claimed in her statutory declaration that she achieved the [tertiary qualification] here in [City 1]. Evidence in her protection visa application form shows, as discussed above, that she moved straight from study at the [College 1] campus in Ho Chi Minh City to the [College 1] campus in [City 1]. [The applicant] later told the Tribunal that her parents financially supported her to come and study in Australia; this information struck me as being potentially incongruous with the claim in the statutory declaration about her parents restricting her freedom due to prejudices about her lesbian sexual orientation, but at the same time that information, as discussed above, seemed inconsistent with what she indicated in her original protection visa application form where she indicated that all her fears in relation to her family were fears about what might happen in the future, as she had not been relevantly harmed in the past.

4. [The applicant] declared that she and [Ms A] cohabited in Ho Chi Minh City during their two-month visit to Vietnam between December 2013 and February 2014. She said that they were able to do this without society suspecting that they were a lesbian couple. She said their respective families did not even know they were back in Vietnam. She claimed essentially that she was discreet and living in hiding during her two months back in Ho Chi Minh City. She described as the reason for her 2013-14 stay in HO Chi Minh City the need to participate in a module of study for [College 1] in order to fulfil requirements for her [name] degree. Although she claims to have hid in Vietnam during this time, so that he family would not know she was there, she nevertheless evidently attended courses provided by the institution that her parents had been paying for her to attend.

5. [The applicant] declared that while the Vietnamese government likes to project an image of tolerance, local police and other authorities remain bigoted enough for there not to be adequate state protection in Vietnam. Whereas she claimed to have been able to cohabit for two months with [Ms A] in Ho Chi Minh City, the same city in which her own family resides, she claimed that she could not safely or practicably relocate within Vietnam because community intolerance is widespread throughout the country.    

6. [The applicant] submitted a witness statement from a female friend named [Ms C], of Ho Chi Minh City. In this statement, [Ms C] said [the applicant] had confided in her about her sexual orientation back in 2010. [Ms C] claimed to have been surprised but accepting. [Ms C] said that [the applicant] introduced [Ms A] to her and other friends in 2010, whereupon [Ms A] was welcomed and included in that group’s sightseeing trips and other social activities. She claimed to have been aware from the beginning that [Ms A] was working for a private company. [Ms B] also claimed that in the middle of 2011, [the applicant]’s mother visited her house with a policeman asking after [the applicant] and saying that she had run away from home. This may have been when [the applicant], according to stamps in her passport, was visiting [Country 1]. [Ms C] said other friends of [the applicant]’s had reported receiving similar visits. [Ms C] said she rang [the applicant] afterwards. She said [the applicant] told her that her parents had turned her relationship with [Ms A] into a “big matter”. All this was, according to [Ms C], in mid-2011. [Ms C] claimed to have heard that [Ms A] “was attacked” by [the applicant]’s family who threatened to kill her if she continued her relationship with [Ms A]. [Ms C] claimed to have heard that [Ms A] reported the threat to the police but received no assistance. [Ms C] claimed that [the applicant] and [Ms A] were “fortunately” able to escape this pressure by coming to Australia. [Ms C] does not appear aware that [the applicant]’s parents evidently supported her studies in Australia, or that [the applicant] voluntarily re-entered Vietnam a number of times after coming here in 2011.

7. Another witness statement was provided by [Ms D] who claimed to have known [the applicant] since 2008. She claimed to have learned at some stage that [the applicant] was lesbian. She claimed to have learned at some stage that [the applicant] started a relationship with [Ms A] in 2009. She claimed to have learned at some stage that [the applicant]’s family found out about her relationship in mid-2010 and tried to interfere whereupon [the applicant] ran away to Dalat.

8. [Ms D] went on to state that [the applicant]’s family somehow engineered a way to force [the applicant] to return home from Dalat in 2010. She claimed to be aware of [the applicant] and [Ms A] continuing to meet secretly and of [the applicant]’s family detecting this in July 2011 and somehow preventing the two from meeting each other. She claimed that after this July intervention, [the applicant] and [Ms A] “decided to travel somewhere, far away from home, in order that they could live side by side.” She claimed [the applicant] left for Australia three months later. [Ms D] claimed to be aware of all of [the applicant]’s return visits to Vietnam having been undertaken for the purpose of spending time in secret with [Ms A].

9. [The applicant]’s own statutory declaration to the Department does not mention her having run away from home, either in 2010 or 2011, although as noted it does refer to her parents having engaged the police to harass [Ms A] at some unspecified point.

Evidence to the delegate

1. For the purposes of the present review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision record, which contains a written summary of her oral evidence and identifies issues of concern that were raised with her at interview [in] April 2015.

2. [The applicant] told the delegate that her parents think she and [Ms A] separated in July 2011 before she came to Australia. She claimed to the delegate that when she returned to Vietnam she and [Ms A] resided together in another city, although this claim appears to be contradicted by the claim in her statutory declaration to the effect that they resided together in Ho Chi Minh City, the same city where her family lives, for two months in 2013-14.

3. [The applicant], who claimed never to have worked in Vietnam, and who claimed she was financially dependent on her parents for her upkeep in Australia, claimed that she paid for her own airfares home from her own savings.  I note that in her protection visa application form she cited having undertaken no employment in Australia or Vietnam due to prioritising her studies.

4. [The applicant], who had explicitly claimed in her protection visa application form that she had never been employed in Vietnam because she had been a student there up until she came to Australia, now claimed to the delegate that she and [Ms A] used to declare to prospective employers, whilst seeking employment in Vietnam, that they were in a lesbian relationship whereupon they were always denied employment.

5. [The applicant] told the delegate that the police were going to charge [Ms A] back in Vietnam when they arrested her. She said this was why she believed she could not avail herself of state protection from harassment from her family and others. She claimed that if her parents suspect that she is still in a relationship with [Ms A] they will confine her and beat her and have [Ms A] charged in some way. The delegate put to [the applicant] evidence to the effect that activities commonly affiliated with homosexuality, sexual relations between adults of the same gender and partner relationships between them are not prohibited by any law or regulation in Vietnam. In response, [the applicant] said this is only propaganda and not actual practice: she then referred to a lesbian friend who had been fined. She then acknowledged that there is no longer a fine levied in Vietnam to couples who conduct same-sex wedding ceremonies. She went on to say the government still does not formally recognise same-sex couples. Asked to comment on the ongoing consideration by lawmakers of proposed reforms regarding property and child custody, she said that local governments issue penalties to same-sex couples and that lesbian couples in particular have no access to IVF. 

Evidence to the Tribunal

1. At the hearing on 7 April 2017, evidence to the effect that [the applicant] is a lesbian and in a relationship with [Ms A] was provided by [the applicant], her [family member], [Ms B], and by [Ms A].

2. I discussed with [Ms B] the brief statutory declaration she declared [in] April 2017; this had been submitted to the Tribunal prior to the hearing. In that declaration [Ms B] claimed [the applicant] introduced her to [Ms A] in 2009. [Ms B] indicated she was informed of the true nature of the relationship from the beginning. She said she socialised with [Ms A] and [the applicant] in their capacity as a couple until her (and [the applicant]’s) parents somehow found out about the relationship. This information seemed not to sit with [the applicant]’s claims to the effect that she had kept or tried to keep her relationship with [Ms A] a secret from her family because, as claimed a number of times in her protection visa application, she feared “serious or significant harm from her family” and “family members”. It also seemed not to sit with the claim in [the applicant]’s statutory declaration to the effect that “My family wants to denounce my same sex relationship”, because here was a family member who was evidently not opposed to it at all. In addition it did not appear to sit with [the applicant]’s claim in her statutory declaration that she had shared information about the nature of her relationship amongst “only a few friends” and that she and [Ms A] both did this to avoid “any potential violence from our family members”.

3. [Ms B] went on to declare: “I also figured out [our parents] somehow got the polices [sic] involved to ruin their relationship. Therefore my [family member] and her partner must get away to Australia to maintain their relationship.”

4. [Ms B] confirmed to me she first met [Ms A] in 2009. I asked her to explain what she meant about having “figured” her parents had “somehow” involved the police in intervening to stop her [family member]’s same-sex relationship. In response, she said she had heard her family saying that they were trying to prevent the relationship. I asked her for more detail and she said she had heard them talking about their desire to prevent the relationship. I put to her that so far there was no detail as to how she intuited that her family had engaged the police in the matter and, in reply, she said she was not aware how the police were involved. She then appeared to contradict this, saying she understood that her mother had engaged the police to help her stop the relationship between [the applicant] and [Ms A]. When I asked her to tell me what led her to become aware of her mother’s specific actions, she said that family members other than her parents had directly told her. I asked her to tell me when she found out about her mother having engaged the police to try and stop the relationship and she said she was not sure. She said she was at high school. A series of questions about class levels and ages led [Ms B] to indicate that she heard about the police having been brought into the matter about eight years ago, which would have been in 2009.

5. I asked [Ms B] if she had any other evidence she wished to discuss and she said she only knows “general matters” about her [family member]’s problem with their parents. I put to her that her evidence seemed vague considering she had been aware of the relationship and its problematic circumstances for over eight years. In response, she said she did not know details. She essentially said that there was very little relevant information she could provide.

1. I asked [Ms B] to tell me her status in Australia and she said she is a student supported to come here and study by her parents.

2. When I invited [the applicant] to comment on any aspect of her [family member]’s evidence she might like to discuss, she said that if something happens in her family the adults do not let the younger children know about it. I asked her if she had any other comments to make in regard to [Ms B]’s testimony and she said she did not.

3. [Ms A] spoke to the genuineness of her relationship with [the applicant]. She also said that the police intervened in 2010. She said that [the applicant]’s family brought a police officer to visit her parents in 2010. She said she was living in Ho Chi Minh City at the time and her parents asked her to move back to the family village of [name]. She said she refused and never moved back.

4. [The applicant] told me she lived at home with her parents without interruption from the time she was born until the time she came to Australia. She said her parents financially supported her travel to and student enrolment in Australia. 

5. I asked [the applicant] why her parents financed her to study and reside abroad if they were concerned about her possibly being a lesbian: their action seemed to suggest giving her a much longer leash, as it were, than she suggested they would have let her have in Vietnam; they would seem less able in the circumstances to force her to conform if they let her come to Australia. In reply, she said that her parents never understood that she was or is a lesbian and believed only that she was for a time under the bad influence of [Ms A] who was [number] years older than her.

6. [The applicant] suggested that her parents would force her to marry a man if they found out she was lesbian. I asked her how they or anyone could ever possibly effect such a thing in Vietnam and she said her parents would not be able to do that. She thus contradicted her claim that they would. She then said her parents could still stop her from seeing any other woman such as by engaging the police. I put to her that since she is now an adult of [age] it was hard to conceive the police would assist her parents in the matter of suppressing her sexual orientation and identity. In reply, she said that in Vietnam a person can achieve an objective, say, by telling the police falsely that another person is using illicit drugs. I asked her if her parents had ever done anything like that and she said they had done. I put to her than on her evidence so far, the police had never taken any action against her such as would suggest that her parents had ever tried such an approach, and she did not rebut this.

7. I asked [the applicant] about when her parents engaged the police. She indicated that this happened in 2010. I put to her that there was no evidence in her protection visa application about any past harm or interference, let alone the use of police in any attempt to break up the relationship. In response, [the applicant] said her representative had advised her that if she did not have any material to support her claims about past harm she should just frame her claims about persecution as fears of harm in the future. I note again that she went beyond doing that when she ticked the “No” box when asked to talk about any past relevant harm she might have suffered. The claim [the applicant] made in evidence to me appeared to be a claim about having been advised by an accredited migration agent to answer a direct and relevant question misleadingly and about going along with the advice.

8. I put to [the applicant] that she indicated in her protection visa application and in oral evidence to me that she resided at her family’s address without interruption until she came to Australia. She had also made no reference in her statutory declaration to having ever run away from home, whether it was in mid-2011, as [Ms C] claimed in writing, or in mid-2010, as [Ms D] claimed in writing. I put to her that her evidence about uninterrupted residence with her parents did not seem to sit with witness evidence about her reportedly having run away from home so noticeably that police accompanied by her mother started investigating her disappearance. In reply, [the applicant] said she did not consider her absence from the house at that time to be so significant as it had only been for a few days. She said it was common for her to go away “on holidays” or go “missing” from time to time. She indicated that this was why she had not referred to it before her witnesses did. She said she only went to Dalat in 2010 for a few days. I expressed concern, in the context of this information, that her parents thought her absence on this occasion was so remarkable as to require calling the police to investigate. In response, she said that what would have upset her mother on this occasion was that she left a letter for her mother telling her that she was a lesbian and that she was going to be away with her partner.

9. However, [the applicant] then went on to say that her mother never even saw the letter, thus undermining her claim that the letter and its contents could have upset her mother and caused her to alert the police. She now suggested that her mother calling in the police had to do with her not finding her letter. She then said she left the letter to her mother in her own bedroom, and hid it under a paperweight where it could not be seen; she added that no-one else was able to get into her room. She said this was why her mother could not possibly have found the letter. She said her mother probably called in the police upon finding her absent from home in June 2010 because she had announced to her mother on some previous occasion that she was a lesbian, all of which seemed to suggest that the letter played no part in what happened at all. The evidence of the letter and its significance struck me as being improvised.

10. At one point, [the applicant] said that her mother even said to her that she did not care what factor had caused her to run away as long as she came home. This entreaty in the terms described did not appear to me to be congruous with the relationship she said she had with her mother at that time.

11. Generally, [the applicant]’s evidence about having run away from home struck me as confused and inconsistent. Supposing that she did run away from home as claimed, however it did not seem unusual for a worried parent to engage the police to investigate, including by asking friends if they could help with any useful information.

12. However, [the applicant] told me that on her return from Dalat her parents confined her to her room, apparently the same room she was at other times able to bar them from entering and greatly restricted her access to the outside world. Meanwhile, according to evidence her protection visa application form, she was progressing through her [name] degree at [College 1], was evidently able to leave home and go on a holiday “visit” to [Country 1] in June-July 2011, and was evidently assisted by her parents in July 2011 to apply for a visa to continue her studies in Australia. Addressing my concern about this apparent incongruity, [the applicant] indicated vaguely that things settled down with her parents after her June 2010 absence in Dlalat but flared up again in June 2011 after she went to [Country 1]. I put to [the applicant] that her parents’ behaviour at the time, between imprisoning her and arranging for her to study abroad at their expense, might reasonably be viewed incongruous and far-fetched. Her overall position in response is that her parents believed, by July 2011, that she had broken up with [Ms A] once and for all, and that it would better insure against possible future contact between them if she were sent abroad.

13. [Ms A] said she was aware that [the applicant] went missing from her home for a few days in June 2010. [Ms A] said that this was when she herself was located by a member of [the applicant]’s family who accused her of immorally influencing [the applicant] and physically struck her.

14. [The applicant] said that if her parents were ever to find out in future that she was still with [Ms A], they would imprison her at home, cut off all her money and isolate her from the Internet and other means of communication. I put to her that it seemed inconceivable that parents would legally be able to do this to an adult child in Vietnam; I observed that she was now [age]. In response she said that parents do have the right and authority to do this in Vietnam, but she provided no evidence to support this contention. She said that her parents could kidnap her and that the police would do nothing if her parents did so. I put to [the applicant] that there appeared to be much independent, non-government reporting of evident improvements in treatment of gays and lesbians by the authorities in Vietnam at least since 2012 and she said that Vietnamese government is only interested in making the situation appear like that so as to attract more gay and lesbian tourists. In this way, she appeared to refer to the Vietnamese government welcoming, at least pragmatically, the presence of Western gay and lesbian culture, attitudes and influences in Vietnam’s society and economy.

15. At the conclusion of the hearing, [the applicant] said that she and [Ms A] had opened a small takeaway food business together in [City 1] and that it was their dream to be here. I considered this as evidence going to the genuineness of their relationship.

Independent country information

Sexual orientation

1. DFAT[1] provides the following summary of reporting from various sources relating to sexual orientation and gender identity in Vietnam:

   3.49 Same-sex sexual activity is legal in Vietnam provided it complies with other legislation also applicable to heterosexual activity (e.g. non-commercial acts between consenting adults in private). A new Law on Marriage and Family which came into effect on 1 January 2015 removed a ban on same sex marriage. However, under the new law the government does not formally recognise same sex marriages, meaning that same sex couples are not afforded the legal protections that heterosexual married couples enjoy. Transgender people also lack legal recognition, including rights to change their name and gender on official documents.

   3.50 In practice, there has been a growing acceptance of the rights of lesbian, gay, bisexual, transgender/transsexual and intersex (LGBTI) people in Vietnam, in what remains a largely traditional country. In 2012, Vietnam’s first gay pride rally took place, attended by around 100 people. It has since become an annual event, with several hundred people taking part in the third Viet Pride celebration in Hanoi in August 2014.

   3.51 DFAT assesses that the risk of official discrimination against LGBTI people in Vietnam is low. An LGBT rights advocate was the only civil society representative permitted to leave Vietnam to attend its UPR session in February 2014.

   3.52 While specific examples of societal discrimination are difficult to uncover, DFAT assesses that the risk of societal discrimination against LGBTI people in Vietnam is moderate, particularly outside the major cities, where ongoing traditional values make social and family acceptance of LGBTI people uncertain.

   [1] DFAT Country Information Report: Vietnam, 31 August 2015

2. Human Rights Watch[2] provided the following short summary of conditions for Vietnam’s LGBT community in 2016:

   In November 2015, the National Assembly approved a bill to legalize sex reassignment surgery and to introduce the right to legal gender recognition for transgender people who have undergone such surgery. The law allows people who wish to undergo gender affirming surgeries to do so in Vietnam rather than abroad, and to change the gender marker on official documents—a small, but significant step toward recognizing transgender people’s rights. A UNESCO study highlighted bullying—usually in the form of verbal insults from peers and teachers—of lesbian, gay, bisexual, and transgender (LGBT) students in Vietnam’s schools.

   [2] “Vietnam: events of 2016” in World Report 2017, Human Rights Watch, 2017,

3. According to reporting from Australia’s ABC[3] News, Vietnam’s LGBT population is evidently growing in visibility with annual LGBT Pride marches in Hanoi and Ho Chi Minh City manifesting larger participation and audiences year after year since 2012. Whilst having regard to such material[4], I am conscious of the fact that although the growth and visibility of “Gay and Lesbian Pride” events in a country can arguably reflect increasing acceptance of LGBT persons within that society, not least because of permission by authorities to conduct such activities publicly, such events having commonly arisen from a need in an LGBT minority in a city or state to address and reduce societal discrimination, whether active or tacit, individual or institutionalised. The permitted public conduct of annual Pride events does not necessarily mean that there remain no problems of prejudice, intolerance and misunderstanding within families and society.

   [3] “Vietnam's LGBT community witnesses blossoming support at gay pride parade”, ABC News, 21 August 2015,

   [4] See also the Euronews video coverage of Gay Pride in Hanoi on 21 August 2016, at 

4. I have had regard to the following report from Public Radio International[5] which discusses marriage reform in Vietnam in a broader socio-political context:

   [5] “On gay rights, Vietnam is now more progressive than much of the US”, Public Radio International, 13 January 2015,

   US politicians of all stripes are fond of condemning Vietnam’s poor human rights record. As one US Senator from Arkansas puts it, America has a “moral obligation" to stand up to oppression” in the communist nation.

   But when it comes to gay rights, conservative US states like Arkansas are actually lagging behind Hanoi.

   Vietnam’s communist party abolished a ban on same-sex marriage last week. Unlike states such as Texas — where vindictive politicians want to stop paying any official who certifies a gay wedding — Vietnam’s political class has responded with a collective shrug.

   Make no mistake: Vietnam is an authoritarian state. Dissent is criminalized. Critics who blog or protest against the government end up in prison. Human Rights Watch, which points to a “human rights crisis” in Vietnam, has catalogued abuses ranging from rampant bribery to abusive police.

   But as long as gay couples refrain from denouncing Vietnam’s communist party, they’re generally left alone.

   Same-sex marriage still isn’t totally endorsed in Vietnam. Unlike for straight couples, whose marriages are protected by laws dictating rights to assets (and other legal perks), gay marriages aren’t fully recognized on par with traditional marriage.

   “But marriage is no longer banned,” says Luong The Huy, a legal expert with ISEE, a non-governmental organization formally titled the Institute for Society, Economy and Environment in Hanoi. “That’s important because anything banned in Vietnam is officially seen as harmful to society.”

   “It’s not perfect,” says Nguyen Anh Tuan, the owner of Gay Hanoi Tours. “It’s not completely there but it is a great step in the right direction. ... Vietnam has always adapted and by learning we become stronger individuals, families and country. I think everyone would agree Vietnam is a quick learner.”

   Still, Vietnam is hardly a gay utopia. An ISEE study suggests that roughly one-third of Vietnam’s gay population is closeted. Gay couples holding hands on the street “may get some verbal abuse but it’ll probably be behind [their] back,” Huy says.

   As Tuan puts it: “Some people will clap and cheer. Others will, I’m sure, shout and spit.”

   Comparing the road toward same-sex marriage in Vietnam and the US is tricky, Huy says, because “we have a totally different system and context.” Vietnam — unlike much of the United States, or many of its Asian neighbors — isn’t under the sway of a religious doctrine casting gay couples as deviant.

   In Aceh, the most orthodox corner of Muslim-majority Indonesia, gay sex is punishable by 100 lashes by a man in dark robes. The Philippines, a bastion of Catholicism and a former US colony, is mired in an America-style debate over same-sex marriage.

   But Vietnam is an atheist state with few religious hang-ups. Gays in Vietnam are more likely to fear condemnation from mom, not God, according to Hoang Van Chuyen, operator of the gay-friendly service Rainbow Tourism Vietnam.

   “Almost all parents would like their sons or daughters to get married and have babies,” he says. This family pressure, he says, forces many gay Vietnamese to “live two lives” and conceal their romantic interests for fear of disappointing family.

   Fully legalized gay marriage, with all of the benefits enjoyed by straight couples, may be in store for Vietnam in the near future. During official deliberations on same-sex marriage, Huy says, Vietnam’s officials were prepared to offer full benefits to gay couples.

   But they retreated, he says, and decided to merely repeal the gay marriage ban in the eleventh hour. “The lawmakers,” he says, “are saying our society just needs a little more time to accept gay marriage.”

5. As at 2013, it remained illegal for same-sex couples to cohabit “without registration” which on the face of things did not appear likely to be granted by relevant authorities any time soon[6]. In 2014, the Kyoto Review of Southeast Asia[7] reported:

   In April 2013, the Deputy Minister of Health spoke out, with Thanh Nien News Agency reporting his statement that, “gay people have the same rights as everyone else to love, be loved and marry.” Several days earlier, the Ministry of Justice had announced that fines would no longer be imposed on same-sex couples who held (non-legal) “marriage” events.

   The government’s proposals on legislative reform were made public in mid-2013, and included extending the rights and obligations of marriage in relation to property and children to cohabiting heterosexual couples and, in a separate section, to cohabiting same-sex couples. On 17 October 2013, representatives of more than 30 social organisations and many LGBT individuals and their allies attended a seminar in Hanoi to release three documents which had been sent to the deputies in the National Assembly. One source reported,

   The documents include a letter of social organizations, a letter of the Parents, Families and Friends of Lesbians and Gays (PFLAG) Vietnam and a petition gathering 8,300 signatures of people who support same-sex marriage.

   Hundreds gathered in a Hanoi park to watch the symbolic marriage of two same-sex couples, with the public celebration including lots of rainbow flags and balloons, as well as 60,000 “likes” on the Facebook pages of the couples.

   Included in a set of revisions to the Constitution submitted in December 2013 was the rewriting of the section on the right to marry. Instead of the wording that “men and women” have the right to marry (phrasing that had been interpreted to restrict marriage to opposite sex couples), the proposed new wording simply said “men, women” have the right to marry. In this, a possible obstacle to legal same-sex marriage was explicitly removed without, it seems, any particular discussion or attention. However, this did not, in itself, extend to actually legally instituting marriage between persons of the same sex.

   On 19 June 2014, Vietnam’s National Assembly rejected a number of the constitutional reforms proposed by the government, with legal recognition of same-sex cohabitation being dropped. Furthermore, recognition of heterosexual cohabitation was limited to issues relating to children (dropping issues relating to property). Surrogacy was strictly limited to a non-commercial arrangement with a blood relative (such as a sister or a cousin). While the provision that banned (non legal) same-sex “marriage” events was dropped, new wording was added that stated, “the state does not recognize same-sex marriage.”

   [6] “A legal guide for same-sex couples in Vietnam”, TroiTreNews.vn, 17 April 2013,

   [7] “Same-Sex Relationships: Moves to Recognition in Vietnam and Thailand”, issue 18, Kyoto Review of Southeast Asia, September 2015,

1. Many  LGBT commentators in Vietnam view the same sex-marriage reform as having allowed same-sex weddings but done little to accommodate same-sex marriages.[8] However, whereas independent evidence indicates that a lesbian couple cannot yet cohabit in that country as a “family registration book” or ho khau-registered couple, this does not necessarily mean that two women cannot reside privately together in shared accommodation in Vietnam. In [the applicant]’s own statutory declaration, there is evidence of her cohabiting privately and exclusively with [Ms A] in Ho Chi Minh City in 2013-14. This appears to be evidence to the effect that same-gender cohabitation, whilst not capable of being formally recognised as marital, is nevertheless possible and practicable in Vietnam. Independent country information indicates, meanwhile, that the ho khau system is evidently having less control over citizens’ lives in larger cities in modern Vietnam in any event.[9]

   [8] “Vietnam Activists Regroup After Failure of Same-Sex Marriage Bid”, VOA News, 4 July 2014,

   [9] Vietnam’s household registration system, World Bank, 2016,

2. The 2014 UNDP report Being LGBT in Asia: Vietnam Country Report[10] and other independent reporting[11] [12] acknowledges instances of bullying of perceived LGBT students in the school environment in Vietnam. However, independent surveys over the years also report a large majority of students in Vietnam regarding homosexuality something that is natural and that his not to be regarded as a moral, psychological, medical or social weakness.[13] [14] [The applicant]’s own submissions include articles about a relaxation of attitudes amongst students in recent years. Her evidence also indicates that she was able to “come out” to a circle of friends and even to at least one sibling and has been accepted by them all, along with her relationship with [Ms A].

   [10]

   [11] “'Nobody helped me': Schools remain dangerous for LGBT youth in Vietnam”, ThanhNien News, 3 January 2016,

   [12] “Vietnam Has Been Praised As A Leader In LGBT Rights. Activists Beg To Differ”, Huffington Post, 18 October 2015,

   [13] “Vietnamese high school pupils accepting of homosexuality”, Pink News, 26 October 2007,

   [14] “Survey: Gay Vietnamese Come Out Early, But Face Battles at Home”, VOA News, 8 February 2015,

3. A survey of the media reporting about police and corruption issues in Vietnam does reveal an ongoing culture of bribery there; this situation is well summarised in the recent DFAT Vietnam Country Information Report. I have had regard to the widely-held historic perception amongst civilians in Vietnam that police cannot be trusted but I also note efforts reportedly being undertaken in Vietnam to improve public confidence in the police.[15] Overall, evidently, the ongoing focus of police repression in Vietnam is political dissent:

   Police in Vietnam arrested a dissident on Saturday for posting anti-state material on the internet, as part of an ongoing crackdown on critics of the Southeast Asian country's Communist rulers.

   Tran Thi Nga, 39, was arrested in northern province Ha Nam, the province's police said on their website, adding that she had been "using the internet to spread some propaganda videos and writings that are against the government of the Social Republic of Vietnam."

   Several local dissidents and bloggers showed support for Nga in posts on their Facebook accounts after her arrest.

   Despite sweeping reforms to its economy and increasing openness toward social change, including gay, lesbian and transgender rights, Vietnam's ruling Communist Party retains tight media censorship and zero tolerance for criticism…[16]

   [15] “UNODC assists Viet Nam in efforts to improve police force”, UNODC website, 2014,

   [16] “Vietnam police arrest dissident for propaganda against state”, Business Insider, 21 January 2017,

4. On the subject of state protection of LGBT persons from harassment by non-state agents, I have had regard to the following article[17]:

   Police in the Mekong Delta province of Tien Giang said Saturday they had arrested a gay man who blackmailed the chief monk of a local pagoda with a film of having sex with the former, online news web site Dan Tri reported.

   The chief monk of Phuoc Son Pagoda in Chau Thanh District, whose name has not been released, had been in a homosexual relationship with Nguyen Thai Hoa, 23, for a long time, police said.

   They said that on December 28, 2011, Hoa filmed the act of having sex with the monk. He then asked the monk to give him VND200 million, failing which he would expose their relationship.

   The monk promised to pay him and informed the local police about the blackmail attempt.

   On January 21, police arrested Hoa when he came to the pagoda to receive the money.

   Police are investigating the case further.

   [17] “Vietnamese man uses sex tape to blackmail homosexual monk”, ThanhNien News, 28 January 2012,

5. I have had regard to the 2014 UNDP report Being LGBT in Asia: Vietnam Country Report,[18] in particular its overview (at pp.16 to 23) of recent developments and important events affecting the LGBT community in Vietnam. There is an annexe to the report listing “Laws and Policies Concerning the LGBT Community” and another annexe listing national groups advocating the rights of LGBT persons in Vietnam. The report cites a range of relevant attitudes amongst employers and companies in Vietnam from less to more conservative ones. It describes improvements in LGBT visibility and dialogue with authorities in years leading up to 2014.

   [18]

6. I have had regard to the following submission[19] to the UN from a non-government agency in Vietnam:

   4. Vietnam has never criminalized homosexuality, yet also never established specific provisions to protect and promote the rights of LGBT. In the first Universal Periodic Review of Vietnam, there were no sections of the national report or any related reports mentioning the rights of LGBT, and also there were no recommendations to ensure rights related to sexual orientation and gender identity.

   5. Existing LGBT groups on the internet develop strongly without being censored. A number of organizations working for the rights of LGBT operate legally, concentrating on research, public education, event organizing1 and advocacy work. Since 2012, several government agencies have started to consider and protect the rights of LGBT people. However, the institutional and legitimate changes are still be waiting in the future…

   23. In 20 December 2012, Vietnam Ministry of Justice held the “Workshop on Comparative Experiences in Protection of LGBT Rights in the Family and Marriage Relations” which invited international and Vietnamese experts to share information and experiences from the progress of legalizing same-sex unions in several countries.

   24. More than 50 members of National Assembly, government officials and members of LGBT and their parents participated in a joint workshop on the “LGBT: Legal Provisions and Opinion of the Insiders” organized by the Institute for Legislative Studies in 10th May 2013.

   25. Justice Minister Ha Hung Cuong took a positive stance towards same-sex marriage stating: “We must not create social prejudice against the homosexual community and

   individual” and “should develop a legal mechanism to protect the legitimate interests of a person, his/her property and children (if any) for people of the same gender in a relationship and living together.”

   26. In the process of revision the Marriage and Family Law, there were three options proposed by the Justice Ministry: legalize marriage between same sex, or remove the ban of same-sex marriage from the law, but just recognize some rights regarding personal and property rights of the cohabitation of same sex couples, or keep the current prohibited regulations.

   [19] SUBMISSION ON THE SITUATIONS OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER (“LGBT”) PEOPLE IN VIETNAM FOR THE EIGHTEENTH SESSION OF THE UNITED NATIONS UNIVERSAL PERIODIC REVIEW FOR VIETNAM (JAN-FEB, 2014), Institute for Studies of Society, Economy and Environment (iSEE), 2014, iSEE is a Vietnamese non-profit organization established in 17th July 2007 working towards the rights of minority groups, which include ethnic minorities and LGBT people. iSEE was the first organization dedicated to advocate for LGBT rights in Vietnam.

Post-hearing submission

1. The post-hearing submission in this matter comprised further statement of arguments from [the applicant]’s adviser, along with some media reporting about discrimination  against LGBT persons and lack of formal state recognition in Vietnam continuing in spite of the lifting of the ban on same-sex marriages, and a copy of a differently-constituted Tribunal’s  decision in the matter of another male protection visa applicant from Vietnam (Refugee Review Tribunal case number 1405551).

2. The implied expectation in submitting the above-cited decision record is that this Tribunal will apply reasoning consistent with the other Tribunal given that, in both cases, the applicants are LGBT persons from Vietnam; in the above-cited case, dated 27 February 2015, the Tribunal found that the applicant was entitled to protection as a refugee. The adviser specifically drew my attention to independent evidence relied upon in that decision. I note that the Tribunal in that case, particularly in assessing availability of effective state protection, relied on information dated no more recently than 2012, some five years ago; one reference, however, is to a purported 2009 VietNam Net article, which I have been unable to locate, quoting the moderator of a lesbian Internet forum whose impression is that lesbians hide their sexuality in Vietnam even more than gay men. The Tribunal in case number 1405551 formed the impression as at early 2015 that “societal pressure may be greater on women in Vietnam than on men”.

3. I have read and considered the facts and reasoning in the other decision; it was made two years ago in relation to another individual and relied on the particular facts that the specific applicant in that case presented. This Tribunal is not bound by the findings of differently-constituted tribunals in relation to different applicants. In the case of 1405551, the applicant was a male and, whilst there was much commentary both positive and negative regarding LGBT issues generally, there was little independent evidence, other than the quote from the lesbian forum moderator, that could be regarded as being specific to lesbians in Vietnam. The Tribunal in that case found the applicant before it to be a credible witness, particularly in relation to past physical assault and treatment by local police. However, it is fair to observe that the Tribunal in that particular case did not appear to address in detail what forms of harm the applicant faced in the reasonably foreseeable future, or why there was a real chance of the harm being inflicted, although the Tribunal did appear to imply that were past cumulative forms of harm to continue they might amount cumulatively and over time to persecution in future. The Tribunal in that case found that the applicant could not rely on relocation because his “membership of a particular social group” would be cognisable throughout Vietnam; other factors that go into consideration about the viability of relocation do not appear to have been examined. Essentially, Refugee Review Tribunal case 1405551 was determined on its individual merits, in light of available evidence at the time of decision. I have considered the contents of this decision record in the course of assessing the individual merits of the specific case before me. I have also considered the general position that societal pressure may be greater with regard to women in Vietnam than to men and that this may affect the ability of lesbians in Vietnam to communicate the reality of their situation to others, and for others to appreciate it.

4. The adviser’s submission is brief and argues in the main that although same-sex marriage is allowed in Vietnam, the state has yet to allow same-sex couples most if not nearly all of the rights of heterosexual married couples. The submission asserts that the failure on the part of Vietnamese lawmakers to proceed as yet to formal, equal recognition of same-sex couples under Vietnamese law is due to a “hostile attitude” on the part of Vietnamese authorities towards LGBT persons in that country, with the effect on [Ms A] and [the applicant] that they will not be able to rely on protection by Vietnamese authorities from harm inflicted by their families or others in society.

Findings in relation to s.36(2)(a) of the Act

1. On the written, oral and documentary evidence provided by [the applicant], and on the testimony of  and her witnesses, [Ms A] and [Ms B], and others whose statements appear in evidence in this case, I have no difficulty accepting that [the applicant] is a lesbian who has been in an intimate, exclusive sexual relationship with [Ms A] since 2009. I accept that in a reflection of deep mutual trust, [the applicant] and [Ms A] have opened a small business in [City 1].

2. Accepting [the applicant]’s written and oral evidence, and that of her witnesses, at face value, albeit overlooking what I find to be many factual inconsistencies in her own claims, I am not satisfied that [the applicant] faces a real chance of persecution in Vietnam for reasons of her sexual orientation and relationship status, or for any other Convention-related reason.

3. With regard to her parents’ alleged behaviour in 2010 and 2011, in confining, beating and threatening her, and then engaging local police officers to harass and threaten her partner, I am not satisfied that there is a real chance that [the applicant] faces a real chance of such mistreatment in the reasonably foreseeable future, even if, as she claims, her family discovers that she was not merely temporarily under the influence of [Ms A] back between 2009-10 and 2011, and remains in a lesbian relationship with her.

4. This is because I am confident on the independent country information before me that [the applicant] would be able to avail herself of state protection from excessive behaviour from her parents and anyone else who vilifies or threatens her in relation to her lesbian status and relationship. I do not accept it would be possible in the reasonably foreseeable future, legally or otherwise, for [the applicant]’s parents to restrict or confine her for any reason at all. On the independent country information before me, I am not satisfied that it would be remotely possible for [the applicant]’s parents to force her into a marriage with a man; even [the applicant] eventually said that her claim about such a fate was groundless. I am confident on the basis of independent country information that, six years after 2011, when [the applicant] was still a student and arguably much more under the rule of her parents, it would not be possible for the latter to co-opt individual police officers into harassing, let alone confining, [the applicant] or any partner she might have on the basis of being lesbians, whether on their own or in a relationship.

5. I am confident on the evidence before me that, in Vietnam today and in the reasonably foreseeable future, the authorities are not in the business of interfering in family matters such as the ones [the applicant] describes. I do not accept that there is a real chance of [the applicant]’s fa,oly being able to bribe police officers into assisting in the harming of [the applicant] or any partner of [the applicant]. On the evidence before me, I am not even satisfied on the evidence before me that attitudes attributed to [the applicant]’s family still obtain: I am not satisfied that her family would continue to be remotely as opposed to her sexual orientation and relationship status as they have been, or at least that they would bother to take action against her. This is because her [family member] [Ms B], for one, has always supported her, her sexual orientation and relationship status, notwithstanding [the applicant]’s early claim that she had been unable ever to share the secret of her relationship with anyone in her family.

6. Whereas [the applicant] claims to believe that her parents, then assuming that she was not herself lesbian, simply sent her away to Australia to keep her away from the bad influence of [Ms A], I do not accept on the evidence before me that this was objectively the case. She had already been a student for several years at the same institution in Vietnam as the one where she completed her study in Australia: her move to Australia was, according to evidence in her protection visa application form, a smooth and uninterrupted transition between campuses of the same academic institution, and it was evidently all funded at the time by her parents. In this light, I do not accept that [the applicant]’s move to Australia was to any significant extent the product of consultation with [Ms A]. In addition, the suggestion that fear of persecution in Vietnam was an essential and significant factor in her move to Australia in 2011 is undermined by her many voluntary returns to Vietnam, not least of all in 2013-14 when she went back to Ho Chi Minh City with her partner to cohabit and study there for around two months in order to complete the degree studies she had started in Vietnam 2010 and continued in Australia from 2011.

7. I am confident on the evidence before me that [the applicant] could confront her parents with the fact that she is (still) a lesbian who is (still) in a relationship with [Ms A] and not face a real chance of Convention-related persecution in Vietnam in the reasonably foreseeable future. In the event that her parents might ostracise her in some way, I consider that this would be an unfortunate situation for [the applicant] both emotionally and psychologically but I do not accept on the evidence before me that living out of contact with her parents or extended family would be sufficiently harmful as to amount to persecution in [the applicant]’s case. 

8. As to [the applicant]’s claimed fear of society more broadly, including authorities not specifically co-opted by her parents, I give weight to a number of factors. I give weight to the fact that [the applicant] is no longer a school student and to the fact that, in any event, even when she was a student, evidently all of those friends and fellow students to whom she disclosed her sexual orientation supported her and continue to do so. I give weight to the fact that with regard to discrimination in the workplace, independent evidence indicates that it is really only in the government sector where discrimination against LGBT employees is likely to occur. I give weight to the fact that [the applicant] has a qualification in [speciality] and has started a small business in [City 1]; thus skilled and experienced she is evidently well able to work in Vietnam’s private sector where I find she will not face such discrimination as would amount even cumulatively to persecution.

1. I give some weight in this matter to the official un-banning of same-sex marriage in Vietnam, and to the observations of the iSee legal expert, cited above, to the effect that this reform is very significant because “anything banned in Vietnam is officially seen as harmful to society.” I accept that not following this reform with laws granting equal rights and protections is discriminatory but I am not satisfied on the evidence before me that there is a real chance that this discrimination would amount or give rise to persecution in [the applicant]’s case.

2. On the evidence before me, I give very little weight to the laws in Vietnam not yet allowing same-sex couples to be ho khau-registered in the same way as heterosexual married couples as it does not evidently stop two people of the same gender registering to reside under the one roof as individuals. I give weight to [the applicant] having been able to reside for two months in Ho Chi Minh City, her own home town, with [Ms A] without any evident concern on the part of others around them including authorities in the local jurisdiction in which their accommodation was situated. I am not satisfied on the evidence before me that lack of access to such services as IVF would cause [the applicant] such serious harm as to amount to persecution, notwithstanding that there is probably an element of discrimination in the state’s decision to allow only heterosexual couples access this specialised and expensive treatment.

3. On the evidence of so many return trips to Vietnam, however temporary, I am satisfied that [the applicant] is willing and able to avail herself of state protection in Vietnam. I am satisfied on the evidence before that she can continue to live either in her own accommodation or cohabiting with [Ms A] in Ho Chi Minh City and not face persecution there. Having made this finding, I find that it is unnecessary to consider the issue of relocation.

4. Whereas [the applicant] asserts that the Vietnamese government, in spite of seemingly liberal public postures, more privately regards LGBT rights as a threat to the power of the state, I am not satisfied on the evidence before me that it is behaving in any way consistent with such a position. Accordingly, I am not satisfied that any public assertion of [the applicant]’s sexual orientation or relationship status would be construed as a dissident social position or political opinion in Vietnam. On the evidence before me, I am not satisfied that [the applicant] would face a real chance of persecution in Vietnam in the event of joining public discourse about LGBT rights in that country.

5. The evidence of [the applicant] and her friends and [family member] regarding her parents having attacked [Ms A] and having co-opted police into threatening the latter is not based on any of these people having personally witnessed the actions and harm described; it all appears to have been reported to them by others. In the case of [Ms B]’s written evidence, it is not even clear at all just what she heard, as she declared simply she found it out “somehow”, although she did add in oral evidence that she heard about some discussion of a desire to ruin the relationship; in the case of [the applicant]’s friends who wrote statements in her support, they appear to have heard about the attacks on [Ms A] from [the applicant] and put the information together with their own claimed experiences of meeting [the applicant]’s mother and a policeman at a time when [the applicant]’s mother appeared to be concerned that she had gone “missing”. Having regard to all of this information, putting aside inconsistencies in [the applicant]’s own evidence, and giving weight to the independent country information about changes in Vietnam and improvements in relations with the authorities, I find that I am not satisfied that there is a real chance that [the applicant]’s family or any police officers or anyone else would be able to behave in a similar way now or in the reasonably foreseeable future. Thus, to the extent that mistreatment of [Ms A] at the hands of [the applicant]’s parents (with or without police help) could be argued to amount to a form of persecution of [the applicant], I am not satisfied that there is a real chance that such mistreatment will occur in the reasonably foreseeable future.

6. Therefore, taking [the applicant]’s claims to the extent possible at face value, I am not satisfied that she faces a real chance of persecution in Vietnam. I do not accept that [the applicant] would be fined for entering into a same sex marriage or be fined by authorities for living in the same accommodation as [Ms A] or anyone else. I do not accept, as she claimed to fear, that she can be forced to marry a man. I do not accept that anyone could confine her or otherwise mistreat or coerce her to prevent her from living as a lesbian. I do not accept she will be unable to find and hold employment. I do not accept that her family will persecute her or engage anyone else such as police officers to do so. I do not accept that police officers or other authorities will harass her, either for their own part or at the behest of family or others, or that they will harass whoever might be her partner, whether it be [Ms A] or (hypothetically) anyone else. I do not accept that [the applicant] will be bullied, not least of all now that she is no longer a student, living outside of the school environment, and several years beyond school age. Overall, I find that [the applicant]’s claimed fear of persecution is based on claims about family and social conditions in Vietnam that, while perhaps existing some years ago, are significantly affected by much improved social and legal developments in more recent years.

7. The High Court of  Australia observed in the case of S935/S396[20] that a person faced with a threat of persecution for exercising his or her rights may take steps to avoid the persecutory conduct or to mitigate harm flowing from it, and that a protection visa applicant may choose to conceal personal attributes (such as religion, or sexual orientation) from his or her persecutors by being discreet. Relevantly, the High Court stated: “persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action”[21]. The High Court also ruled that it would be erroneous to require an applicant to take steps, reasonable or otherwise, to avoid offending his or her persecutors, or to modify some attribute or characteristic to avoid persecution[22]. Relevant to this, I accept that [the applicant] may generally prefer to keep personal matters to herself, although her own evidence shows that she shared the facts of her sexual orientation with her [family member] and friends back in 2009, as soon as she was confident of the significance of her relationship with [Ms A]. I am not satisfied that [the applicant] would face a real chance of persecution in Vietnam in the reasonably foreseeable future but for her choosing to be discreet or altering her behaviour to avoid detection or suspicions regarding lesbian orientation and relationship. Having regard to the High Court’s S395/S396, I am not satisfied that [the applicant] will be discreet or alter her behaviour in Vietnam due to well founded fear of persecution.

   [20] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, Appellant S395/2002 v MIMA (2003) 216 CLR 473.

   [21] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [40].

   [22] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [40] and per Gummow and Hayne JJ at [80].

8. In view of my findings above, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution, separately or cumulatively, in Vietnam in the reasonably foreseeable future.

9. In any event, whereas my findings above are essentially based on a “real chance” assessment of the claims [the applicant] has made, I nevertheless find that she is a highly unreliable witness in the present matter, notwithstanding that the oral and written evidence of her various witnesses generally agrees with what she claims. Essentially, I find that [the applicant]’s own evidence is so confused and inconsistent that I give no weight in this matter to the evidence of her witnesses.

10. Although, as noted above, I do accept that [the applicant] is a lesbian and that she is in a long-term, genuine relationship with [Ms A], I find that [the applicant] has been plainly inconsistent in claiming initially, in her protection visa application form, that she suffered no relevant harm in the past in Vietnam, and claiming since then that she indeed suffered harassment, threats and physical abuse from her parents. I also find that she has been confused and inconsistent in the details she gave about the harm she claims to have suffered and as to the circumstances in which the harm arose.

11. On the written testimony of [the applicant]’s [family member], [Ms B], who claims [the applicant] told her of the relationship with [Ms A] in 2009, I do not accept [the applicant]’s suggestion that for her own part she did not divulge her lesbian status to her family.

12. I give weight to [the applicant] having said to me that she never sought employment while she was a student in Vietnam because she was a student. On this very logical basis, and noting that that she lived at home with her parents whilst studying at [College 1] until she came to Australia, I find that [the applicant] falsely claimed in other evidence to have sought employment back when she was living in Vietnam. Accordingly, I find that she falsely claimed that she declared her sexual orientation and/or lesbian relationship status to prospective employers whilst seeking employment in Vietnam. It follows that I find she made a false claim about having suffered discrimination after declaring her lesbian orientation to prospective employers in Vietnam.

13. I find that [the applicant]’s claims about her mother engaging a police officer because she went “missing” in 2010 relies on inconsistent evidence about how her mother reacted to the purported letter that she left for her mother or, alternately, hid in her room where no-one could or did find it. This part of [the applicant]’s evidence was particularly weak and when I put to her how problematic it was, she changed her claims again, saying that on some vague and unspecified  occasion before that, she had declared to her mother that she was a lesbian. I give much weight to this problem in her evidence. On the evidence before me I do not accept that [the applicant] ever ran away from home, let alone because of family pressure over her relationship with [Ms A]. I do not accept on inconsistent and confused evidence before me, in relation to going “missing” or running away from home, that [the applicant] ever attempted suicide.

14. I find that [the applicant]’s claim that she substantially funded her own travel to and studies in Australia, and was able to travel back to Vietnam several times totally independent of her parents’ financial support, simply implausible; this is because, as noted above, [the applicant] told me categorically that she never had any job in her life. I infer from this that she never had any personal earnings to save towards travel to Australia, let alone multiple visits back to Vietnam. I find on the evidence before me that [the applicant]’s parents funded her travel to and studies in Australia. I find that she gave me contradictory, confused and highly unreliable  explanations as to why they did so in the claimed circumstances. Because she completed her education at the [City 1] campus of the same school she attended in Vietnam, and did this all at her own parents’ expense, I find that [the applicant] made a false claim when she said that she applied for a visa to study in Australia at the prompting of [Ms A].

15. In particular, given that [the applicant] claims her parents have threatened to force her to marry a man, given her claim about declaring herself a lesbian some time prior to going to Dalat in 2010, and given her claim that in 2011 her parents discovered once more in the same relationship with [Ms A] that they had tried to end in 2010, I do not accept that they did not know or understand that she was herself a lesbian, or that they believed her merely to be someone who was temporarily under the influence of [Ms A]. I find [the applicant]’s evidence of the liberty her parents allowed her in coming to study in Australia at their own expense consistent with the support they gave to her studies since 2009 and 2010, and highly inconsistent with what she claimed was their fears for her moral safety. 

16. I give some weight in this matter to the fact that [the applicant] voluntarily returned to Vietnam on a number of occasions. I find that her voluntary stays in Vietnam go against her claimed fear of societal and institutional repression there.  Overall, [the applicant]’s claims about returning to Vietnam to maintain the health and viability of her relationship with [Ms A] do not help to argue she had an overriding fear of persecution in that country.

17. Whereas I can accept that [the applicant] and [Ms A] resided together in Ho Chi Minh City during their visit there in 2013-14, I do not accept on [the applicant]’s generally inconsistent evidence in this case, including the claim she made at one stage about hiding in another city throughout that period, that they hid from her family while they were in Ho Chi Minh City or that [the applicant]’s family was unaware that she was back in Vietnam. 

18. I do not accept [the applicant]’s inconsistent evidence to the effect that her family does not know that she is a lesbian and believes that she is no longer in a relationship with [Ms A]. Rather, I find that her family knows and that the claims about harm she has suffered at the hands of her parents with the help of the police are false and unreliable claims.

19. Since I find that [the applicant] has made inconsistent and unreliable claims to the effect that her own family objects to her relationship with [Ms A], I do not accept her claim to the effect that [Ms A]’s family has, or has disclosed by word or deed, any significant objection to it either.

20. Generally [the applicant] asserts that I should not believe the independent country information about improved circumstances and effective state protection in Vietnam because, in the end, persecution starts with the family, friends, neighbours and colleagues, with the state either letting it happen or contributing directly to it.  In light of the poor quality of [the applicant]’s own evidence in this matter, I give weight to the independent evidence to the effect that there have been and continue to be  significant improvements for LGBT persons in Vietnam, and I give no weight to her confused and inconsistent evidence about how her family treated her and engaged police and others to harass her partner Ms Pham.

21. As I have referred earlier to the availability of state protection in this case, I consider it helpful to note that the protection visa applicant’s country of nationality/receiving country is not required to guarantee the safety of its citizens from harm caused by non-state persons.[23] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[24] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[25]

    [23] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-105 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.

    [24] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

    [25] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

22. In my consideration of availability of effective state protection and the question of relocation, I have shown that I give weight to the fact that [the applicant] re-entered Vietnam a number of times and, in particular, voluntarily re-entered and resided in Ho Chi Minh City for two months in 2013-14, and was able to complete requisite studies there without potentially relevant interruption or distraction, and to the fact that she was free to leave Vietnam every time she left. I also give weight to evidence of police attitudes to LGBT persons having evolved in recent years. I have considered [the applicant]’s female gender in my assessment of the availability of protection from arguably male-dominated state agencies, as it has been suggested independently that information regarding women’s access toprotection may be incomplete for a number of reasons. However, on the evidence and guidance before me, I am satisfied that [the applicant] would be able to avail herself of effective state protection in Vietnam from potentially relevant harm including coercion, blackmail, trespassing, physical or verbal abuse or other harm from anyone in that country including her family, employers, colleagues, other non-state parties or agents and individual state employees.

23. Having considered all of the evidence before me in its entirety, separately and cumulatively, at face value and also in terms of consistency and reliability, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution in Vietnam in the reasonably foreseeable future.

24. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore she does not satisfy the criterion set out in s.36(2)(a).

Findings in relation to s.36(2)(aa) of the Act

1. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

2. A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

3. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

4. In this case, [the applicant]’s claims to complementary protection are essentially the same claims she has made for protection as a refugee. I have assessed her claims above in terms of credibility and, putting credibility issues aside, in terms of whtehr they meet the “real chance” test”. Given my findings of fact in relation to [the applicant]’s refugee claims, and given that the "real risk" test for complementary protection imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, and also given my negative findings as to [the applicant]’s own credibility in this matter, I find that her claims are no more able to succeed as complementary protection claims than they are as refugee claims.

5. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that [the applicant] will suffer significant harm.

Other findings

1. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, she does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Luke Hardy
Member

ATTACHMENT A

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

2. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

4. 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 a protection 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 the applicant 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’).

5. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

Online forums take an important role in LGBT people in Vietnam as a place to get connected. The number of registered members of the largest online forums are up to more than 370,000 people. This submission has been assisted and supported by the following civil society organizations and websites working on LGBT in Vietnam:

 Center for Innovative Communication, Services and Studies on Sexuality (ICS)
 Centre for Creative Initiatives in Health and Population (CCIHP)
 Center for Studies and Applied Sciences in Gender, Family, Women and Adolescents (CSAGA)
 Forum Ban Gai VN for Vietnamese Lesbian ( Forum Tao Xanh for Vietnamese Teenager Gay ( Forum Tinh Yeu Trai Viet for Vietnamese Gay ( Forum Vuon Tinh Nhan for Vietnamese Gay ( Vietnam’s Online News for LGBT (