1506960 (Refugee)

[2017] AATA 1266

1506960 (Refugee) [2017] AATA 1266 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506960

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 – Harm from partner’s parents and police – Employed and lived independently for many years – Credibility issues – Inconsistent and unreliable evidence – State protection available – Relocation possible

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIAC v SZQRB [2013] FCAFC 33
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Thiyagarajah (1998) 80 FCR 543
NAGV & NAGW v MIMIA (2005) 222 CLR 161

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. Essentially her protection visa application is about her relationship with another Vietnamese citizen, [Ms A] (AAT MRD case # 1506958).

3. [The applicant] entered Australia [in] July 2013 on a [temporary] visa valid to [date] August 2017 and, according to the passport she submitted to the Immigration Department (DIBP), departed [in] December 2013, returning here once more [in] February 2014. Her passport shows that she spent the intervening period back in Vietnam.

4. [The applicant] lodged a protection visa application [in] July 2014 and the Minister’s delegate refused to grant the visa [in] May 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 [Ms A] and [Ms A]’s [family member, Ms B]. 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 Kien Giang, about 270 km southwest of Ho Chi Minh City where she lived at the same address from January 2004 to September 2013, when she came to Australia. She claimed to have been employed with a private company as an [occupation] from October 2011 until May 2013. She claimed to have travelled to [Country 1] for a visit in mid-2011.

9. [The applicant] claimed she came to Australia to pursue studies and “freedoms” deprived of her in Vietnam. I note that she claimed not to have suffered relevant harm in Vietnam, but stated that she feared not being able to maintain her relationship with her partner [Ms A]. She claimed that authorities in Vietnam would not protect her from her family members or other hostile individuals. Because overt homosexual relationships are not accepted n Vietnamese culture. She claimed her relationship will be perceived as a family dishonour. She claimed she will be deprived of rights and not be able to subsist in Vietnam due to her lesbian/LGBT sexual orientation. She claimed fear of future harm from her family, close relatives and society in general. She said openly gay/lesbian relationships are not accepted in Vietnam.

10. [The applicant] indicated in her protection visa application form that she would later submit a detailed statement.

    Submissions to the Department

11. The statement that [the applicant] submitted to the Department was, in fact, a photocopy of [Ms A]’s statutory declaration (ref. case number 1506958). She also provided copies of the same doucments 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 ([the applicant] 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 material submitted dates back to 2007, and one of the reports 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.40 in [the applicant]’s 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.40).

12. In her statutory declaration, dated [in] April 2015, [Ms A] said she had considered herself lesbian since the age of [age]. She said her parents do not tolerate her sexual orientation. Appearing to contradict evidence in her protection visa application form, she 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 [the applicant] and engaged the police to harass her. She claimed [the applicant] was once detained for [number] hours and released only upon pretending to renounce their relationship. [Ms A] claimed she attempted suicide with sleeping pills and was hospitalised. She claimed [the applicant] 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 [the applicant] was the reason she applied for a [temporary] visa in Australia. She claimed in her statutory declaration that she achieved the degree of [field of study] here in [City 1]. She 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 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.

13. [Ms A] declared in her statutory declaration that she and [the applicant] 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.

14. [Ms A] 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 [the applicant] 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. In submitting the photocopy of this statutory declaration [the applicant] was evidently endorsing its content.   

15. [The applicant] also submitted the same witness statements submitted by [Ms A] in her own case. One of these is from a female friend of [Ms A]’s named [Ms C], who claims [Ms A] had confided in her about her sexual orientation back in 2010. [Ms C] claimed to have been surprised but accepting. [Ms C] said that [Ms A] introduced [the applicant] to her and other friends in 2010, whereupon [the applicant] was welcomed and included in that groups trips and other social activities. She claimed to have been aware from the beginning that [the applicant] was working for a private company. [Ms C] also claimed that in the middle of 2011, [Ms A]’s mother visited her house with a policeman asking after [Ms A] and saying that she had run away from home. [Ms C] said other friends of [Ms A]’s had reported receiving similar visits. [Ms C] said she rang [Ms A] after the visit. She said [Ms A] told her that her parents had turned her relationship with [the applicant] into a “big matter”. She claimed to have learned that [the applicant] “was attacked” by [Ms A]’s family who, she claimed to have heard, had threatened to kill her if she continued her relationship with [Ms A]. She claimed to have heard that [the applicant] reported the threat to the police but received no assistance. [Ms C] claimed that [Ms A] and [the applicant] were “fortunately” able to escape this pressure by coming to Australia. [Ms C] appears unaware that [Ms A]’s parents evidently supported her studies in Australia.

16. The other witness statement was provided by another friend of [Ms A]’s, a [Ms D], who claimed to have known [Ms A] since 2008. She claimed to have learned at some stage that [Ms A] was lesbian. She claimed to have learned at some stage that [Ms A] started a relationship with [the applicant] in 2009. She claimed to have learned at some stage that [Ms A]’s family found out about her relationship in mid-2010 and tried to interfere whereupon [Ms A] ran away to Dalat. This evidence does not appear to sit with evidence of [Ms C] to the effect that [Ms A] ran away in the middle of 2011.

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

18. [Ms A]’s own statutory declaration to the Department does not mention her having run away from home, either in 2010 or 2011 although, as I have noted, it does refer to her parents having engaged the police to harass [the applicant] at some unspecified point. Taken together, the three factual statements submitted by [Ms A] and also by [the applicant] appear to contain similar discrepancies.

    Evidence to the delegate

19. 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.

20. In her evidence to the delegate, [the applicant] said she first felt fear of persecution for reasons of her sexual orientation in 2010: she said her fear first arose when [Ms A]’s family located her in that year and assaulted her in reaction to her relationship with [Ms A].

21. [The applicant] told the delegate that her own parents in Kien Giang still were not aware that she is in a relationship with [Ms A] or even that she lesbian. She later contradicted this claim in the evidence she gave to me at the Tribunal hearing.

22. [The applicant] told the delegate that [Ms A]’s family was aggressive and yelling at her when they found out about the relationship. She said they also called the police who apprehended her, took her to a police station and forced her to complete a statement under threat of charging her with having seduced [Ms A]. She did not appear to suggest specifically what law prohibits private sexual activity between adults of the same gender, and when the delegate put to her that no laws in Vietnam prohibit the latter, she said that although gays and lesbians can legally wed in Vietnam there is still institutional discrimination on account of LGBT couples not being permitted to “have children” or adopt. She said that authorities allow same-sex marriages but do not issue marriage certificates.

23. [The applicant] told the delegate that she feared that [Ms A]’s family might hit her or arrange for someone else to hit her. In later evidence to me she claimed she had been hit in the past, meaning that when [Ms A]’s family tracked her down in Ho Chi Minh City they were more than just aggressive and yelling.  

24. [The applicant] claimed to the delegate that if she returns to Vietnam her parents will force her to marry a man. Implicit in this is the claim that her parents will find out eventually she is a lesbian unless she continues to suppress her sexual orientation.

25. Although [the applicant] claimed to have worked from 2001 to 2013 as an [occupation] with a company, she said that she would not be able to be employed in Vietnam due to her sexual orientation. It is reasonable to infer that she meant she feared she would be sacked and unemployed in the event of her sexual orientation being known in the work environment.

26. [The applicant] presented the delegate with a large number of photographs, separately batched to indicate specifically dated episodes and trips experienced together with [Ms A] during her and their travel back to Vietnam, consistent with claims made by [Ms A] in her statutory declaration.

    Evidence to the Tribunal

27. 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], [Ms A] and the latter’s [family member, Ms B]. [The applicant] and [Ms A] also tabled a number of photographs of their social and domestic life; these were all copied to their files.

28. [Ms B] spoke at the hearing to the brief statutory declaration she declared [in] April 2017, which [the applicant] included in a pre-hearing submission. In that declaration she claimed that her [family member Ms A] introduced her to [the applicant] in 2009. [Ms B] indicated in her statutory declaration she was informed [Ms A] and [the applicant] who identified in her presence as a couple. She indicated this continued until [Ms A]’s parents found out about the relationship. [Ms B] went on to declare: “I also figured out [[the] parents] somehow got the polices [sic] involved to ruin their relationship. Therefore [Ms A] and her partner must get away to Australia to maintain their relationship.”

29. [Ms B] confirmed to me she first met [the applicant] in 2009. I asked her to explain what she meant about having “figured” [Ms A]’s parents had “somehow” involved the police in intervening to stop [Ms A]’s same-sex relationship. In response, she said she had heard her family saying that they were trying to prevent the relationship. She said, however, that she was not aware as to how the police were involved. She then appeared to contradict this, saying she understood that [Ms A]’s mother had engaged the police to help her stop the relationship between [Ms A] and [the applicant]. When I asked her to tell me what led her to become aware of [Ms A]’s mother’s specific actions, she said that family [members] had directly told her. She said, however, that she was not sure when [Ms A’s] mother engaged the police in the matter. Recalling that she was at [school] at the time, she went on to indicate that she heard about the police being brought into the matter about eight years ago, which would have been in or around 2009.

30. [Ms B] said she only knows “general matters” about [Ms A’s] parents’ response to the relationship between [Ms A] and [the applicant].

31. Throughout the hearing, [Ms A] gave evidence going to the genuineness of her relationship with [the applicant]. In particular, [Ms A] said that she and [the applicant] had recently opened a small [business] together in [City 1].

32. [The applicant] also gave evidence about the genuineness of her relationship with [Ms A]. This evidence is supported by the many indexed photographs, located in her DIBP file, depicting times spent together between 2009 and 2015.

33. [The applicant] told me that the police intervened in the relationship in 2010. She said that [Ms A]’s family brought a police officer to visit her own parents in 2010. She said she was living in Ho Chi Minh City at the time. She said that her own parents asked her to move back to the family village of Kien Giang. She said she refused and never moved back. Evidently her parents never succeeded in having her return or returned to Kien Giang.

34. [The applicant] told me at the hearing that her family did not know about her relationship with [Ms A] until [Ms A]’s family visited her parents in Kien Giang in 2010 and complained to them about it. She emphasised that she was not there as she was living in Ho Chi Minh City, away from Kien Giang, since the age of [age]. As noted, this claim contradicts what [the applicant] evidently told the delegate when she said that her parents still remained unaware of her sexual orientation and of the relationship with [Ms A] as at the time of the April 2015 protection visa interview.

35. [The applicant] told me that in spite of failing to force her to quit her job and life in Ho Chi Minh City in and after 2010, and in spite of failing to force her to return to live in Kien Giang, her parents funded her to travel to and study in Australia. She claimed she later had to resort to her own savings to finance her upkeep in Australia. I put to her that it seemed odd that, after she defied her parents’ orders for her to return to live in Kien Giang, and hence their unsuccessful attempt to confine her there, they nevertheless supported her visa to study abroad. In reply, she said her parents were unaware that [Ms A] had already moved to Australia. She claimed that her parents and [Ms A]’s parents who had been in contact from 2010 did not keep in touch when [Ms A] came to Australia.

36. [The applicant] then gave another reason why her parents paid for her to study long-term in Australia: indicating that her sexual orientation disgusted them, she said her parents wanted to send her “to another place” so that they would not have to see her. I put to her that this seemed somewhat implausible on the face of things because she was already living far from her parents when she was residing in Ho Chi Minh City. In response she said that her parents in Kien Giang thought [Ms A] was still living in Ho Chi Minh City. She said her parents organised to send her to Australia so that she would not be able to continue her relationship with [Ms A] in Ho Chi Minh City. I put to [the applicant] that it seemed somewhat of a coincidence that her parents succeeded only in sending her to the very country where [Ms A] was residing. In reply, she said that she specifically chose Australia when her parents discussed with her which country to send or exile her. Looking at [the applicant]’s evidence overall, these claims about her being forced into financially-supported exile by her parents, after years of independent, self-financed and career-supported living in Ho Chi Minh City, struck me as being somewhat implausible.

37. I asked [the applicant] what her parents threatened in the event of her relationship with [Ms A] not ceasing and, in reply, she merely said they asked her to stop because they did not want her to have any contact with [Ms A]. I asked her if that was all and she said that her parents merely asked her to “Please give up [the relationship and] return home.” She said that during the period while her parents were trying to get her to return to live in Kien Giang she planned with [Ms A], saved for and effected her departure for Australia on a [temporary] visa. Again, there seemed to be a discrepancy in [the applicant]’s evidence about whether her parents were trying at this time to confine her within their sight or to send her away where they would not have to see her at all. In my opinion, this discrepancy which I raised with [the applicant] for discussion was not resolved.

1. I put to [the applicant] that her parents’ act of sending her abroad would not necessarily prevent her from being lesbian or forming lesbian relationships, the point being that this seemed an expensive and ineffective way of making her conform with conservative Vietnamese social norms. In reply, she said she promised to her parents that when she came to Australia she would focus on study, the implication here being that, after years of conflict over the issue of her sexual orientation, they now believed her. 

2. Having considered [the applicant]’s own testimony in its entirety, I am of the view that she improvised explanations for the support her parents gave her to come and study in Australia in 2013, particularly since the first response to the concern I raised was merely about [the applicant]’s parents removing her from their proximity, albeit three years after discovering the relationship in 2010. Again, all this evidence is inconsistent with [the applicant]’s claim to the delegate about her parents not knowing about her sexual orientation or relationship with [Ms A] up to the time of her protection visa interview.

3. [The applicant] also told me that when her parents demanded that she return from Ho Chi Minh City to live in Kien Giang in 2010 she explicitly declared she was lesbian. She said that when she declared this to her parents she lost her job. She implied here that she was sacked through some action on the part of her parents. I put to her that this claim was discrepant with the information in her protection visa application form about her having been an [occupation] in a Ho Chi Minh City-based firm from 2001 to 2013, three years after the alleged events of 2010, and right up to the time she left Vietnam for Australia. In response, she made a new claim to the effect that the company that employed her as an [occupation] belonged to her [relative]. She said it did not pay her enough money and that she needed a second, better-paying job which, in fact was her “main source of income”, albeit not mentioned in her protection visa application. She said it was the second job that she lost after coming out as a lesbian. Interestingly, [the applicant] appeared at this point to be giving evidence about a family member or [relative] who continued to employ her even after the alleged events of 2010. Somehow, if her parents intervened to have her sacked, they did not succeed in having her [relative] sack her after twelve years. Arguably more significantly, [the applicant] made no reference in her protection visa application form either to the mistreatment of being sacked from a job, which she was now describing as relevant harm, or even to the job itself ; rather she indicated at Q44 of her protection visa application form that she suffered no relevant harm in Vietnam, the rest of her claims in that form being about fears of future mistreatment.

4. I asked [the applicant] why she only mentioned the lesser or lower paying, but more stable and secure 2001-2013 job in her protection visa application form. In reply, she said she did this on the advice of a migration agent.

5. [The applicant] told me that it was [Ms A]’s [relative] who, accompanied by a police officer, located her parents in Kien Giang and complained about the relationship in 2010. She said [Ms A]’s family also found her in Ho Chi Minh City  in 2010 while [Ms A] was missing from her family home. She said she was slapped on this occasion. Then she made a new claim about being beaten on a second occasion: she said that when she and [Ms A] went to [Country 1] on holidays in mid-2011, her own mother in Kien Giang suspected something and arranged for someone to follow them there. She claimed that the person who monitored them discovered that they were still a couple and reported back to [the applicant]’s mother, whereupon the latter sent someone to her house, after she had returned to Ho Chi Minh City, to beat her up. Again, this does not sit with the claim in her protection visa application form about not having suffered any relevant harm in the past in Vietnam.

6. [The applicant] claimed that in the event of returning to Vietnam she will be forced by her parents to marry a man. She also said that her family will be able to engage the police to stop the relationship, just as they did when they arrested her and forced her to renounce it in 2010. She said she would rather be confined to her parents’ home and do nothing than marry a man. She did not suggest how her parents would be able to force her to marry, except by suggesting that they might be able to bribe a police officer to threaten her somehow. She said the police can do this in Vietnam because they are easy to bribe. I put to [the applicant] that I could not find evidence to support her claims about police being co-opted into private acts of coercion of adult LGBT persons in Vietnam, such as in forcing them to marry against their will; rather, I had been able to locate evidence of Vietnamese authorities protecting LGBT persons from coercion by others, as in the example of a Buddhist monk who was being blackmailed (see below). [The applicant]’s response to this was a general observation to the effect that there is no rule of law in Vietnam.

7. I note that [the applicant]’s own evidence earlier in the hearing, although not sitting with what she claimed in her protection visa application, was evidence to the effect that her parents had had no success whatsoever in coercing her to return to Kien Giang over many years. [The applicant]’s position was that there is no rule of law in Vietnam. She said that when [Ms A]’s family attacked her the police did nothing. She said that when [Ms A]’s family finds out that she and [Ms A] are still together they will attack her again. She also said there are no organisations in Vietnam that support LGBT people; however, I am aware that there are several LGBT support organisations openly operating in Ho Chi Minh City alone[1].

   [1]Being LGBT in Asia: Viet Nam Country Report, UNDP, 2014, Annex 1: List of Prominent LGBT Organizations in Viet Nam, p.50, >

   At the end of the hearing, the adviser foreshadowed a post-hearing submission which the Tribunal received [in] April 2017.

   Post-hearing submission

8. The post-hearing submission in this matter comprised further argument from [the applicant]’s adviser, some media reporting about discrimination  against LGBT persons and about there being still no 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).

9. 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 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.

10. 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 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 specific to lesbians in Vietnam. The Tribunal in that case found the applicant 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 identify 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, seeming merely to infer that were past cumulative forms of harm to continue they might amount 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. 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 this decision 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 to communicate their situation and for others to appreciate it.

11. 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 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 [the applicant] and [Ms A] that they will not be able to rely on protection by Vietnamese authorities from harm inflicted by their families or others in society.

    Independent country information

12. DFAT[2] provides the following observations about 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.

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

13. According to reporting from the ABC[3], Vietnam’s LGBT population is evidently growing in visibility with LGBT Pride marches in Hanoi and Ho Chi Minh City manifesting larger participation and audiences year after year since 2012.

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

14. Reading the material above, I am conscious of the fact that although the growth and visibility of “Gay and Lesbian Pride” events in a country arguably reflect increasing acceptance of LGBT persons within that society, not least because of authorities granting permission such events to be conducted publicly, they are essentially born of the LGBT minority’s need to address and reduce societal discrimination, whether active or tacit, or institutionalised or not.

15. Same-sex couples are not yet able to register as a household or family under the family book or ho khau system[4]. In 2014, the Kyoto Review of Southeast Asia[5] 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.”

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

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

16. 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.[6] 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 [Ms A]’s statutory declaration, submitted to the Department by [the applicant], there is evidence of the two cohabiting privately in Ho Chi Minh City in 2013-14. This appears to be evidence to the effect that same-gender cohabitation, whilst not formally recognised as marriage, is nevertheless possible and practicable in Vietnam. Independent country information indicates, meanwhile, that the ho khau system is evidently having less control over peoples’ lives in larger cities in modern Vietnam, particularly for those in the private professional sector.[7]

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

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

17. Independent reporting[8] [9] 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.[10]

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

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

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

18. On the subject of state protection of LGBT persons from harassment by non-state agents, I have had regard to the following article[11]:

    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.

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

19. I have had regard to the 2014 UNDP report Being LGBT in Asia: Vietnam Country Report,[12] 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.

    [12]

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

1. I accept that [the applicant] was raised by her parents in Kien Giang and that they have continued to live there since she moved to Ho Chi Minh City in 2001 where she resided until coming to Australia in 2013.

2. I accept on the evidence of [the applicant], [Ms A], [Ms B] that [the applicant] is a lesbian who has been in an intimate, genuine and exclusive consensual sexual relationship with [Ms A] since 2009. I accept that the relationship continued after [Ms A] came to Australia in 2011 and that it is still continuing.

3. I accept that lesbians, like other LGBT persons, and lesbian couples are cognisable groups in Vietnamese society. I find that [the applicant] is a member of both of these particular social groups: “lesbians in Vietnam” and “lesbian couples in Vietnam”. Whether she faces a real chance of persecution for reasons of being a member of either or both of these particular social groups is a separate matter and must be assessed on the merits of the evidence she has presented in this application.

4. Looking at the claims in [the applicant]’s original protection visa application form on its own, her claims about the future possibility of her parents finding out that she is lesbian, as distinct from claims about their having already found out. Overall, she clearly stated that she suffered no past harm. She essentially changed her position with regard to past harm in her evidence to the delegate, according to the primary decision record she submitted to the Tribunal for the purposes of this review, and also said that her parents did not yet know that she was a lesbian or had been in a lesbian relationship. I found a number of unresolved contradictions in [the applicant]’s evidence.

5. I do not accept [the applicant]’s evidence to the effect that her parents ever tried to force her to quit living and working in Ho Chi Minh City and return to Kien Giang after finding out her sexual orientation and lesbian relationship. I find that her oral evidence at the hearing about her parents’ acrimonious relationship with her, about their knowledge of her sexual orientation and relationship with [Ms A], about their allegedly trying to restrict her to Kien Giang and, in the more recently-disclosed claim, about their sending someone to beat her, is highly conflicting and inconsistent. I give this inconsistency some weight in my overall assessment of her reliability in this matter. The evidence she gave at the hearing about past pressure, threats and harm from or at the behest of her parents is also inconsistent with what she claimed in her protection visa application form, where she said she suffered no past harm. I give this problem some weight.

6. I accept that [the applicant] contributed some of her own funds and that her parents also financially supported her so that she could come to Australia as a student in 2013. I do not accept on the evidence before me that her parents did this as some kind of way of exiling her in their eyes. I find this to be evidence of goodwill on the part of her parents. I find that this goodwill is not consistent with how, in evidence to me, [the applicant] described the nature of her relationship with her parents. [The applicant] gave conflicting, implausible and, in my view, improvised evidence as to why her parents supported her study abroad in what she alleges were highly acrimonious circumstances between them. On her ultimately unreliable evidence, I am not satisfied that there has ever been any such acrimony between her and her parents.

7. I accept that [the applicant] and [Ms A] travelled from Australia back to Vietnam together in 2013 and resided together in Ho Chi Minh City for two months before departing Vietnam legally again in 2014. I give weight to the evidence to the effect that they were not harmed during their visit back in Vietnam. [The applicant] essentially claims that she and [Ms A] avoided harm because they were hiding, mainly from [Ms A]’s family and others, while [Ms A] proceeded to complete a study unit for her degree in Australia. On the basis of inconsistencies discussed in the preceding two paragraphs, I do not accept that [the applicant] and [Ms A] were in hiding during that period. I give some weight in this matter to the fact that [the applicant] returned to reside for that period in the same city that had been her home town since 2001. It is indicated in the copied statutory declaration which she submitted to the Department that no-one regarded her cohabitation with [Ms A] in Ho Chi Minh City at the time as a lesbian relationship. I give some weight to the evident perception that no-one was taking, or at least displaying, any significant, relevant exception to their residing together in Ho Chi Minh City in 2013-14.

8. I accept that [the applicant] worked as an [occupation] for a private company in Ho Chi Minh City from 2001 until she came to Australia in 2013. I am not satisfied on [the applicant]’s conflicting evidence about treatment from her family that she was only able to have this job through the kindness of a [relative] who ran the company. I do not accept on [the applicant]’s conflicting evidence in this matter that she had a second job that she failed to disclose in her protection visa application form due to advice from someone else. I do not accept on [the applicant]’s conflicting evidence that she was ever sacked from any job in Vietnam, let alone this previously undisclosed “other” job, and let alone for reasons of her sexual orientation. I find that [the applicant]’s claim about how societal discrimination in the workplace affected her is a fabrication. I find that this is a cumulative factor in my overall assessment of her reliability in and vulnerability to future harm the present matter.

9. On the evidence before me, I find that [the applicant]’s account of having been followed during her holiday with [Ms A] in [Country 1] in 2011 and about having subsequently been the subject of a report to her parents, is implausible and fabricated. I find on the evidence before me that her claims about her parents sending someone to beat her after her holiday in [Country 1] are simply not true.

10. [The applicant] has claimed directly and indirectly that her own parents found out about her sexual orientation and relationship with [Ms A] from [Ms A]’s parents who saw her as having immoral influence over their daughter. She has claimed that this led to her being slapped by a member of [Ms A]’s family and also led to her being apprehended by police and detained under threat of prosecution for some hours until she gave some kind of undertaking to renounce both the relationship and her lesbian orientation. Whereas some country information indicates that some parents of LGBT children have reportedly attacked their children’s partners, I find on the basis of the many discrepancies discussed in paragraphs immediately above that I do not believe any of [the applicant]’s claims about [Ms A]’s family. [The applicant] has copied and several testimonials from  [Ms A], [Ms B] and some of [Ms A]’s friends, about her treatment at the hands of [Ms A]’s family. However, [the applicant]’s evidence is so thoroughly tainted by inconsistency that I give no weight to these witness statements as to how she was treated by [Ms A]’s family or her own.

11. [The applicant]’s claims about possible future interference by police and lack of access to state protection are based, to a significant degree, on how the police were co-opted into harassing her in the past, notwithstanding that she and [Ms A] were committing no criminal offence. On [the applicant]’s own inconsistent and unreliable evidence, however, I do not accept that any police officer or local police station was ever co-opted into harassing, confining or threatening her, let alone with a criminal offence. Whereas [Ms A]’s statutory declaration, [Ms B]’s oral and written evidence suggest indirect awareness of such things having happened to [the applicant], and whereas a number of witnesses claim to have heard about [the applicant]’s experiences via [Ms A], I give their evidence about involvement of the police no weight due to [the applicant]’s own overwhelming lack of reliability in the matter.

12. Whereas [the applicant] claims her parents have the ability and connections to force her to marry, I am not satisfied on the evidence before me that they or anyone else in Vietnam could force [the applicant] to marry anybody she did not herself intend to marry. 

13. I am not satisfied that any of [the applicant]’s claims about past mistreatment are truthful. Overall, on [the applicant]’s conflicting and inconsistent evidence, I do not accept that her parents or [Ms A]’s parents are to any potentially significant extent concerned about her lesbian orientation or relationship with [Ms A].

14. Essentially, I do not accept that the significant majority of claims [the applicant] has made in this case  since completing her protection visa application form are truthful. Accepting that she is lesbian and in a lesbian relationship, I will proceed to consider her claims as claims relating to fear of future harm in a case where there has not been relevant past harm for the reason, as stated in [the applicant]’s protection visa application form, she has not been “overt” about her sexual orientation and relationship. I will assess whether or not there is a real chance of [the applicant] being harmed in Vietnam in the reasonably foreseeable future should her sexual orientation and relationship status become known to people who do not already accept and tolerate it.

15. I accept that [the applicant] and [Ms A] have preferred and tried in various contexts over time to keep their sexual orientation and relationship status private; people do so for a range of reasons. In this case, [the applicant] claims she has had to do this in order to avoid persecution. She essentially claims that it would be unreasonable for her to be required to continue to be discreet about her sexual orientation and relationship with [Ms A]. The High Court of  Australia supports this general position. The Court observed in the case of S935/S396[13] 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”[14]. 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[15].

    [13] 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.

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

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

16. In the event that [the applicant]’s parents do become negatively concerned in the future, I cannot rule out that there might be verbal abuse and social ostracism, but I do not accept on the evidence before me that antagonism towards her would go beyond that. In light of [the applicant] having lived independently in Vietnam for so long, far from her parents in Kien Giang, I am not satisfied on the evidence before me a negative attitude would amount or lead to a real chance of harm amounting to persecution of [the applicant], directly, indirectly, physically, mentally or otherwise. I find it highly unlikely that [Ms A]’s parents would target [the applicant] in the reasonably foreseeable future and, in any event, I am not satisfied on the evidence before me that [the applicant] would be unable to avail herself of state protection against harassment or other interference, say, from [Ms A]’s family or relatives or anyone else.

17. [The applicant] has broadly asserted that the Vietnamese government, merely paying lip service  to an evolving, more liberal stance in relation to LGBT orientations and rights, still nevertheless regards such social and moral diversity as a threat to the power of the one-party state. However, I am not satisfied on the evidence before me that the government’s behaviour is in any way consistent with such a position. Accordingly, I am not satisfied that any assertion of [the applicant]’s sexual orientation or relationship status, in action or word (spoken, written or published and disseminated) would be construed as a dissident social position or political opinion in Vietnam. I am not satisfied on the evidence before me that she would face a real chance of persecution in Vietnam in the event of joining public discourse about LGBT rights.

18. I am not satisfied on the evidence before me that the current lack of availability of IVF to lesbian would cause [the applicant] such harm as to amount to persecution, even though I can envisage that this lack of availability has a discriminatory element.

19. I am not satisfied on the evidence before me that there is a real chance that societal awareness of [the applicant]’s sexual orientation and relationship status, even in the workplace, would amount to serious harm, or lead to a real chance of her suffering such harm as could reasonably regarded as persecution (ref. s.91R(1) and (2) of the Act).

20. I am not satisfied on the evidence before me that [the applicant] would need to be discreet to avoid persecution from the police or other authorities, or that she would face a real chance of persecution by them were it not for her being discreet and hiding her lesbian orientation and relationship status.

21. 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. I am not satisfied that she would face a real chance of persecution in Vietnam were it not for her choosing to be discreet or altering her behaviour to make it harder for society to detect that she is a lesbian and in a lesbian relationship.

22. The foregoing findings turn mainly on the issue of [the applicant]’s lack of credibility regarding past harm mainly from individual relatives, one particular employer and some police officers who were co-opted somehow into the issue of trying to break up the relationship and steer [the applicant] to comply with more conservative social norms. I am confident of the credibility findings that I have made above.

23. In the alternative, I am not satisfied that [the applicant] faces a real chance of persecution in Vietnam in the reasonably foreseeable future, notwithstanding the lack of formal recognition of same-sex marriages, notwithstanding the ongoing phenomenon of bullying at schools and notwithstanding the claimed past harassment by individuals described in this case. I make this finding on the basis of evidence to the effect that [the applicant]’s own family supported her financially to follow her own interests in 2013. I also make this finding on the basis of how long ago the arguably isolated incidents with [Ms A]’s relatives are claimed to have occurred. In addition, I make this finding on the basis of the behaviour of the police on isolated and long past occasions having evidently been reliant on very individual relationships and influence at the time. In light of widely-reported easing of societal and institutional attitudes in Vietnam, I am not satisfied that there is a real chance that police officers will harass [the applicant] or be co-opted into harassing her in the reasonably foreseeable future, let alone that they would be able to threaten her with charges as a way of punishing her for or trying to deter her from being a lesbian on her own, or from being in a relationship with another woman. I do not accept that [the applicant] will be denied an ability to subsist for any reason.

24. I give weight to evidence in this case, including from [the applicant] herself, of the availability of stable employment in the private sector even for “out” gay and lesbian individuals in Vietnam, and also to evidence of a more relaxed, laissez-faire societal attitude generally towards LGBT persons in cities such as Ho Chi Minh City, as well as to evidence in news reports and various specialised studies of improved relations between the LGBT minority, including lesbians (and lesbian couples), and the authorities over the years since [the applicant] last lived in Vietnam.

25. It is settled in law 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.[16] 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”.[17] 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”.[18]

    [16] 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.

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

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

26. In my consideration of availability of effective state protection and the question of relocation, I give some weight to the fact that [the applicant] voluntarily re-entered and resided in Ho Chi Minh City in Vietnam for two months in 2013-14, soon after she left for Australia the first time, and to the fact that she evidently left Vietnam legally at the time of her choosing. 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. 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 parents, [Ms A]’s family, employers, colleagues, other non-state parties or agents and individual state employees. Meanwhile, the evidence of cohabitation in Ho Chi Minh City in 2013-14, although for only two months, along with other evidence about relevant conditions and developments in that city, leads me to be satisfied that [the applicant] and her partner could reasonably and practicably reside and cohabit in Ho Chi Minh City without potentially significant interference, let alone serious harm or persecution, from their families or the authorities or anyone else. I am also satisfied on the evidence before me that it would be safe, reasonable and practicable for [the applicant] and her partner to relocate to Dalat or another city if they preferred not to stay in Ho Chi Minh City, which they demonstrably prefer to do.  

27. Having considered all of the evidence in this matter separately and cumulatively, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution in Vietnam in the reasonably foreseeable future. Her claimed fear of Convention-related persecution is not well founded. She is not a refugee.

1. 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

2. 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). 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. Given my findings of fact in relation to [the applicant]’s refugee claims, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that her claims can no more succeed as complementary protection claims than they do 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

6. 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

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

   Luke Hardy
   Member

   
   

   ATTACHMENT A

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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.