1621458 (Refugee)

1621458 (Refugee) [2022] AATA 2812 (5 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621458
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David McCulloch
DATE:5 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.

Statement made on 05 July 2022 at 8:45am
CATCHWORDS
REFUGEE – protection visa – Vietnam – member of particular social group – homosexual man – concealed relationship in home country and long-term de facto partnership with Australian citizen – disowned by family – objection to compulsory military service and fear of harm in conservative culture – credibility – relationship with family – delay in applying for protection and long period as unlawful non-citizen – country information – some legal rights for same-sex relationships but no anti-discrimination laws and widespread societal non-acceptance – requirements for military service – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 3 June 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 1 July 2022 at 9.30am. The applicant heard evidence from [Mr A], the applicant’s partner. The Tribunal was assisted through the use of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Vietnam, 13 December 2019, a copy of which was provided to the applicant at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant entered Australia [in] April 2007 on a [Student visa 1], which was initially granted on 29 March 2007. The applicant was also granted a [Student visa 2] on 6 July 2010. The applicant applied for a protection visa on 3 June 2016.
The following information is apparent from the application for protection forms. The applicant was born on [Date] in Ho Chi Minh City, Vietnam. The applicant is of Vietnamese ethnicity and speaks, reads, and writes both Vietnamese and English. The applicant has been in a de facto relationship since 15 October 2010. The applicant’s family reside in Vietnam, and the applicant is not in contact with them. The applicant lived at one address in Ho Chi Minh City from birth until April 2007. The applicant completed primary school [in Year 2], graduating from [School], Vietnam. The applicant withdrew from [High School], Vietnam [in Year 2], and completed his Year 12 English Certificate from [College], Australia on October 2010. The applicant has never worked and is currently unemployed.
The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):
1.     I make this statement with reference to my application for a protection visa.
2.     I am claiming persecution on the grounds of Belonging to a Particular Social Group Being a Homosexual
3.     I also continue to rely on Complimentary protection for assessment of my claims.
Background
4.     I was born on [Date], at Ho Chi Ming City, Vietnam.
5.     I am a Vietnamese national and have no other nationality or right to enter or reside in a third country.
6.     I am the holder of a Vietnamese passport.
7.     I am currently in a gay relationship with my partner [Mr A].
8.     I do not practice any religion.
9.     My usual occupation is an international student.
10. I arrived in Australia [in] April 2007. Since my initial arrival in Australia, I have not returned to Vietnam.
Family background
11. My parents and [siblings] continue to reside in Vietnam.
12. I have no close relatives in Australia.
Realization of Sexual Orientation
13. I first came to the realization that I am a homosexual at the age of 14 or 15.
14. I had remained a closet gay throughout the time I had resided in Vietnam as I feared corning out due to family and societal rejection of homosexuality.
15. I had one secret homosexual relationship in Vietnam with a fellow student. His name was [Mr B]. Our relationship lasted approximately 3 years and had ended just prior to traveling to Australia.
16. Throughout our relationship we remained vigilant as to ensure that no one knew that we were in a gay relationship. However, we constantly feared that our secret would be discovered. We had sex in private places and in public we had to make out that we were simply very close friends.
17. We could never have come out and pronounced to our respective family and friends that we are a gay couple. This would have brought enormous shame and rejection from both families, relatives and friends. We also feared that we may be physically assaulted by individuals, including family members and relatives who object to homosexuality.
18. My parents are still not aware of the fact that I am a homosexual and expect that I will marry once I return to Vietnam.
My Current Homosexual Relationship
19. I am currently in a longstanding gay relationship with my partner. Our relationship started in mid-2010. We initially met each other in [Location]. We have been residing together since October 2011.
20. My partner is an Australia citizen, of Vietnamese heritage.
Why I Fear Returning To Vietnam
21. If my partner and I return to Vietnam we would be forced to conceal the fact that we are in a gay relationship. We cannot live openly as a gay couple because of fear of being harmed, being deprived of adequate police protection and being subjected to discrimination in a wide range of arrears including employment, education and access to health care.
22. We also fear approaching the police for protection as they too do not generally accept homosexuals. We fear that if we approach them for protection they may harm, extort us or inform our parents. The police are generally very corrupt in Vietnam.
23. The objection to homosexuality in Vietnam is widespread, even in large cities such as Hanoi and Ho Chi Ming City. The degree of discrimination would jeopardize our ability to earn a living and have access to proper medical care.
Objection to Military Service
24. I also face the prospects of being persecuted whilst completing military service. I have outstanding military service obligations to which I object to on the basis of being severely harmed/mistreated in the military on the basis of my sexual orientation.
25. The Vietnam military does not accept homosexual recruits nor do they provide us the alternative to military duties.
26. If I return to Vietnam I would have to conceal the fact that I am gay whilst completing military service otherwise I will be severely punished. If the Vietnam authorities were to know the basis of my objection to military service they would likely imprison me and subject me to physical and mental torture.
Delay in Lodgment
27. I did not apply for protection much earlier because I was too frightened to inform the Australian authorities about my problems, fearing that they may deport me.
28. As I have been illegal for a substantial period, I am not legally able to apply for a partner visa onshore and will be expected to return to Vietnam to lodge an offshore partner visa application. This would mean that after I return to Vietnam I will be required to complete service, which I am trying to avoid due to the mistreatment of homosexuals in the military.
The following documents were provided to the Department:
·Various photos containing the applicant, applicant’s partner and other individuals.
·A statutory declaration by [Mr A], dated 1 December 2016, confirming the applicant’s current relationship with [Mr A]. The declaration states that the applicant and [Mr A] first met in 2010, and officially became a couple in 2013. It states that their relationship ‘has grown to a point where we cannot be apart’.
·A statutory declaration by [Mr C], dated 5 December 2016, stating that the applicant is the tenant of [Mr C], and that since living at his place of residence the only person that [Mr C] has known as the applicant’s partner is [Mr A]. The declaration states that the applicant’s partner has been supporting him by paying rent for the last three years.
The applicant provided a further Statutory Declaration to the Tribunal dated 21 June 2022, as follows (not corrected for spelling or grammar):
1.       I make this statement with reference to my application for a review of a decision made by the Department of Home Affairs not to grant me a protection visa.
2.       I continue to claim persecution on the grounds of belonging to a particular social group, being a homosexual Vietnamese man.
3.       I was born on [Date] in Ho Chi Minh City, Vietnam. My usual occupation is an international student.
Coming out as a gay man:
4.       I had come to the realization that I am a homosexual at the age of 14 or 15.
5.       Despite coming to this realization during my adolescence, I had elected to remain a closeted gay in Vietnam due to fear of being subjected to serious harm at the hands of my family, close relatives and other individuals who hold objections to homosexuality.
6.       The Vietnamese society continues to be a predominantly socially conservative society, where homosexuality and homosexual relationships continue to be rejected. Any progress made in terms of universal social acceptance of the LGBGT community in Vietnam has been slow and very much confined to certain sectors of society, particularly the privileged class and the tourism sector.
7.       The predominant community view in Vietnam of homosexuality is that it is a mental illness which can be treated.
8.       It is still not possible in Vietnam for an individual to be openly gay or have openly gay relationships unless you come from a privileged class, such as the wealthy or the politically connected. Other members of the minority LGBT community in Vietnam continue to fear coming out as they have no political or legal protection.
9.       Overt gay relationships continue to be rejected by mainstream Vietnamese society, especially within the context of the family environment or in employment. Stigma and discrimination against the LGBT community often manifests in incidents of harassment, bullying and even serious physical harm.
Vietnamese governments failure to provide adequate legal safeguards to the Minority LGBT community in Vietnam
10.      The Vietnamese society continues to be predominantly conservative, steadfastly holding on to traditions and rejecting any degree of acceptance and tolerance towards the LGBT community. Societies innate attitude is similarly reflected in the Vietnamese government's treatment of the LGBT communities.
11.      The Vietnamese government has failed in its obligation to protect the minority LGBT community. It has failed to enact effective legal safeguards to protect vulnerable members of the LGBT community, hence members of the LGBT community in Vietnam remain vulnerable to severe discrimination, harassment and serious physical harm.
12.      The Vietnamese authorities, whilst seeking to project to the international community a high degree of tolerance of LGBT, this is merely a campaign to attract foreign tourism devoid of any meaningful legal protection being offered to the local LGBT community.
13.      Whilst on the face, Vietnam appears to be demonstrating progress in the areas of human rights, including the rights of LGBT community, in truth this is far from reality and such efforts are merely a campaign designed to attack overseas tourists to Vietnam, promoting Vietnam as a receptive and tolerant country.
14.      Any progress is limited to accommodating foreign LGBT tourists. Overseas LGBT tourists may within the context of tourism likely enjoy a receptive and tolerant environment in Vietnam. However, such level of acceptance and tolerance is not extended to the local LGBT community, where they continue to face significant threats and impediments to their freedoms.
Persecution whilst completing military service
15.      I continue to fear being subject to persecution whilst completing my period of military conscription.
16.      The situation in the Vietnamese military in terms of acceptance and tolerance of homosexual men is even far worse. The Vietnamese military do not tolerate recruits who identify as being homosexual. Homosexual recruits are forced to conceal their true sexual orientation for fear of being targeted by other recruits or senior officers for serious mistreatment.
17.      I attach articles (marked with letters "A " and "B") from the Radio Free Asia (AFA) which is an independent Vietnamese channel operating in the US. This channel dedicates its main news stream to highlights human rights abuses being committed in Vietnam and throughout Asia.
18.      The attached articles highlight abuses being committed in the Vietnamese military. The articles feature reports of the death of 4 military recruits. Although not reported, unconfirmed reports state that all 4 military recruits were killed due to the fact that they were identified as being gay. I also have a video which reports the family of the victims trying in vain to seek answers as to the cause of their son's death in the military. I am happy to submit same for the Tribunal consideration.
19.      I fear that if I were to undertake my compulsory military service, I will have to actively conceal my true sexual orientation or otherwise will likely be subjected to serious mistreatment or possible death. There is no option for me but to undertake significant selfimposed restrictions whilst completing military service including concealing my true sexual orientation as a means of mitigating exposure to serious physical harm.
20.      Military recruits who are identified as being gay whilst completing military service are targeted for mistreatment and this situation has not altered despite the concerted campaign by the Vietnamese government to project a false image of acceptance and tolerance. The incidents reported in the attached articles, demonstrates the true level of vulnerability and abuses that gay military recruits are subjected to.
21.      Vietnam has a considerable way to go before it can be considered a tolerant country where members of the LGBT community enjoy equal rights and freedoms as other Vietnamese citizens.
22.      As stated above any purported progress made thus far has been limited toward tolerance of LGBT tourists. I could not openly come out as a homosexual man in the general community and certainly not be able to do so during my period of conscription. To do so would mean that I would be exposing myself to potential serious harm.
23.      I am unable to avoid military conscript and the Vietnamese government does not offer any alternatives to conscription. I have no choice but to enlist for conscription upon my immediate return to Vietnam.
24.      Having completed my overseas studies. I no longer have any legal rights in Vietnam to defer my military conscript.
My social activities in Australia
25.      The only period in my life where I found real freedom and was able to openly come out as a gay man was during my time in Australia.
26.      Whilst I did have a causal gay relationship in Vietnam with a fellow student, named [Mr B]. This relationship was of very short duration and remained clandestine.
27.      It was not until after my initial arrival in Australia that I had experienced a sense of real freedom and maintained an open a homosexual relationship.
28.      I have been in a gay relationship with my long-term partner [Mr A] since mid-2010. My partner is also of Vietnamese background and is an Australian citizen.
29.      I have not had any contact with my family in Vietnamese since soon arriving in Australia. I came out as gay soon after my arrival in Australia and as a consequence my parents and the rest of the family have chosen to completely disown me.
30.      Since my arrival in Australia, I have attended a total of 2 Gay Mardi gras, the last occasion was prior to covid. This year I attended the after party (Gay Mardi gras after party) with m y partners. My partner and I regularly socialize with a group of gay men and women. We also frequent the [Venue 1], which is located in [Suburb] and the [Venue 2], located in the CDB.
31.      I am happy in Australia and do not wish to return to Vietnam where I may be forced to once again conceal my true sexual orientation as well as being forced to end my long term relationship with my partner.

On 30 June 2022 provided on behalf of the applicant was the following material to the Tribunal:
·An article by Kenneth Roth, undated, which states that the ruling Communist Party of Vietnam (CPV) severely restricts freedom of expression, association, peaceful assembly, movement and religion. The article also states that critics of the government face police intimidation, harassment, even arbitrary arrest and imprisonment. Among other restrictions of rights, however, the Vietnamese government has taken modest strides to recognise LGBT rights, including removing prohibitions on same-sex relationships, despite not adding explicit protections for LGBT people. It states that LGBT youths face widespread discrimination and violence at home and school.
·An article entitled, ‘The Fight for LGBT Rights in Vietnam Still Has a Long Way To Go’ by Thoi Nguyen, dated 28 February 2020 for The Diplomat. The article states that according to a report from Human Rights Watch, there was still prejudice, discrimination and stigma facing the LGBT community in Vietnam who had been labelled ‘a social evil’ by the media in the past.
·An article entitled, ‘Overview Of LGBTQ+ Rights In Vietnam’ by Son Nguyen, dated 16 June 2021 for the Vietnamese: Independent Journalism Matters. According to the article, there are no anti-discrimination laws to protect LGBTQ+ people in Vietnam and they face discrimination from society.
Independent information
The 2019 DFAT report on Vietnam provides the following information:
Same-sex relationships are legal in Vietnam, provided they comply with other legislation also applicable to heterosexual activity and are consensual between adults. The age of consent in Vietnam is 16 regardless of gender or sexual orientation. The revised Law on Marriage and Family that entered into force on 1 January 2015 allows same-sex weddings but does not offer legal recognition or protection to unions between people of the same sex, including with regard to inheritance and adoption. Vietnamese law also does not offer protection from discrimination on the basis of sexual orientation or gender identity in relation to housing, employment, or access to services.
There has been a marked improvement in recent years in the quality and quantity of discussion about lesbian, gay, bisexual, transgender and intersex (LGBTI) issues and rights in Vietnam, aided by the fact that the government does not consider LGBTI issues to be politically sensitive. Vietnam’s first gay pride parade, Viet Pride, took place peacefully in Hanoi in 2012 and has since become a nationwide annual event. The 2019 parade event in HCMC was themed ‘Out and Proud’ and was part of a series of activities marking Viet Pride. There are LGBTI-friendly spaces in Hanoi and HCMC, including coffee shops, art spaces, and ‘queer zones’, which are visually identifiable by stickers and located on a community map. Social media, especially Facebook, is the main channel for finding networks, and younger LGBTI members are increasingly accessing information from their peers and community. Advocacy groups, including the Parents, Families and Friends of Lesbians and Gays, provide support to LGBTI individuals. Information and support networks remain limited at the provincial level, however. Local research on ethnic minority LGBTI communities reported self-stigma and access to services as the key challenges for this community.
While there have been some improvements in the legislative environment, and an improvement in the level of social acceptance, Vietnamese culture continues to promote traditional views of gender and sexuality that tend to be conservative. Non-normative sexual orientations and gender identities are believed by many to be the result of karma; LGBTI individuals or their families are commonly believed to have committed negative actions in their previous lives. A 2015 study conducted by a local LGBTI rights organisation found that one in three LGBTI individuals had experienced discrimination within families, schools, workplaces or health providers in the previous year, but only two per cent of respondents had reported their cases to police or local authorities. In-country sources report that gay and lesbian people typically seek employment and then ‘come out’, to prevent their sexuality affecting recruitment decisions. Transgender individuals reportedly experience job denial based on their gender expression, forcing many to engage in low-paid jobs, including prostitution. Discrimination and bullying in schools from peers, has caused some LGBTI individuals to leave school early, which has negatively affected their employment prospects.
Domestic violence against LGBTI people is high, largely due to the societal expectation of marriage. A local LGBTI rights organisation reported receiving calls on a weekly basis from LGBTI individuals who had been beaten or prevented from leaving their homes by family members. Some parents and siblings have also been reported to pressure LGBTI family members to change their appearance, to enter a heterosexual marriage and have children (especially for lesbians), or, in extreme cases, to leave the family. Families have also been involved in forced medical treatment, ranging from medication to psychological interventions, but the number of forced medical treatments has reportedly reduced. In-country sources report that public violence against LGBTI people is low, but occurs more commonly against transgender people as they tend to be more visibly identifiable. A 2015 study by Save the Children found that young LGBT people were frequently subjected to police hostility, including physical violence, meaning that many felt unable to seek the assistance of police when needed.
Article 37 of the revised Civil Code (2015), which came into effect in 2017, recognises the right to legal gender recognition of transgender people. The Article still requires additional legislation to be fully implemented, and a draft law protecting the legal status and rights of transgender people is expected to be reviewed by the National Assembly by 2020. LGBTI advocates have criticised Article 37’s prerequisite for individuals to undergo sexual reassignment surgery (SRS) in order to legally change identity documentation, arguing that some transgender individuals are unable to or choose not to undergo SRS. SRS typically involves two separate procedures for the upper and lower body. The procedure for the upper body is considered plastic surgery, but is typically not costly and can be undertaken at provincial hospitals. The procedure for the lower body requires major surgery and such surgery and aftercare costs are reported to be around VND13 million (approximately AUD800), beyond the means of most transgender people. SRS is covered under the national health insurance scheme for intersex people, but not transgender people. Medical interventions on intersex infants and children in Vietnam are permissible under Article 36 of the Civil Code and are still performed.
DFAT assesses that LGBTI individuals in Vietnam face a low risk of official discrimination, and a moderate risk of societal discrimination on a day-to-day basis. DFAT further assesses that LGBTI individuals in Vietnam face a moderate risk of violence due to their sexual orientation or gender identity. As most societal discrimination and violence against LGBTI individuals is within the domestic context, DFAT assesses that LGBTI individuals can typically relocate within Vietnam, subject to their individual financial circumstances, household registration requirements (see Household Registration), and the availability of LGBTI support services and networks.[1]
[1] DFAT, Country Information Report – Vietnam, 13 December 2019, pp 32–33, paras [3.79]–[3.84]
The Tribunal notes the following recent research undertaken into LGBT issues in Vietnam by the Country of Origin Information Services Section of the Department of Home Affairs in a report dated 23 February 2021:[2]
Vietnam has progressively liberalised laws around same-sex conduct in recent-years. In recent years the government has amended legislation to increase recognition of LGBTIQ+ rights and in 2013 removed consensual same-sex relationships from the country’s list of forbidden relationships.[3] In 2015, the government repealed a ban on same-sex marriage.[4] In addition to legal rights, the government has introduced targeted medical services; for example, in January 2019, the Binh Dan Hospital in Saigon opened Vietnam’s first clinic catering specifically to members of the LGBT community.[5] However, while same-sex sexual conduct is legal, there are no laws to prohibit discrimination on the basis of sexual orientation or gender identity.[6] Also, while same-sex marriage is not banned, same-sex marriages are not officially recognised.[7]
Transgender people who have undergone sex re-assignment surgery can register their new status. Article 37 of the revised Civil Code, which came into effect in 2017, contains new provisions legalising transgender rights – including the right to change their sex, access health care and change their gender identity on official documents if they have undergone sex re-assignment surgery.[8] Advocates have criticised the requirement for sex re-assignment surgery as not all transgender people wish to undergo surgery, and the surgery is expensive and not covered under the national health insurance scheme for transgender people.[9] Reports indicate that despite the passing of the 2017 Civil Code, transgender people are yet to receive official recognition or access rights around gender change on identity documents. This is in part due to Vietnam’s failure to legalize sex-reassignment surgery and in part due to a bill on transgender rights still awaiting passage.[10]
Vietnam increasingly accepts the rights of LGBTIQ+ people. The government does not consider LGBTIQ+ issues to be politically sensitive.[11] Numerous civil society organisations advocating for LGBTIQ+ rights have emerged in recent years.[12] Vietnam’s first pride rally took place in 2012,[13] and has become an annual event.[14] Authorities have allowed pride marches and gatherings to proceed despite not being registered.[15] In 2019 numerous pride parades and events were held throughout the country.[16] Mainstream Vietnamese media – which is controlled by the government – increasingly promotes the view that being gay is normal.[17] LGBTIQ+-friendly spaces, including coffee shops and art spaces, exist in Hanoi and Ho Chi Minh City.[18] However, places to meet on a day-to-day basis remain limited and many Vietnamese LGBTIQ+ people remain discreet in expressing their sexuality.[19] Information and support networks are limited at the provincial level.[20]
Despite increased tolerance by the government, discrimination against LGBTIQ+ people remains widespread in Vietnamese society. Societal discrimination and stigma against LGBTIQ+ people remains widespread and is worst towards transgender people.[21] Discrimination is most pervasive in schools, health care and the work place, although it also occurs within some families.[22] Vietnamese LGBTIQ+ youth face widespread discrimination and violence at home and at school.[23] The belief that same-sex attraction is a diagnosable, treatable, and curable mental health condition is common.[24] Violence against LGBTIQ+ people is much less common than other forms of discrimination, such as verbal insults and online abuse.[25] LGBTIQ+ people often choose not to report incidents of discrimination or violence to police because they perceive it as commonplace, do not believe it will be adequately resolved or fear embarrassment.[26]
[2] Country of Origin Information Services Section of the Department of Home Affairs, Common Claims – Vietnam, 23 February 2021, pp.8–10
[3] ‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, p.1, 20200214091242
[4] ‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, p.1, 20200214091242; ‘Freedom in the World 2018 – Vietnam’, Freedom House, 5 April 2018, NGED867A684
[5] ‘Vietnam’s first LGBT-friendly clinic provides relief from illness and prejudice’, VNExpress, 29 January 2019, 20190130103506
[6] ‘Freedom in the World 2019 – Vietnam’, Freedom House, 02 August 2019, p.6, 20190802161239
[7] ‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, p.1, 20200214091242; ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121
[8] ‘LGBT rights: Vietnam recognises transgender people, but there’s a flaw in its law’, Sen Nguyen, South China Morning Post, 21 June 2019, 20190814134558; ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.33, 20191213145121
[9]‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, p.1, 20200214091242; ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.33, 20191213145121
[10] ‘Trans Legal Mapping Report: Recognition Before the Law’, ILGA, 30 September 2020, p.109, 20201001140359; ‘Vietnam’s transgender citizens suffer in a grey area’, VNExpress, 2 January 2020, 20201118134044
[11] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121
[12] ‘Being LGBT in Asia – Vietnam country report’, USAID & UNDP, August 2014, p.21, CX324893
[13] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121
[14] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121; ‘Love in the air at gay pride parade in Ho Chi Minh City’, Tuoi Tre Online, 25 September 2017, CXC90406620464
[15] ‘Report of a Home Office fact-finding mission to Vietnam – Conducted between 23 February and 1st March 2019’, UK Home Office, 09 September 2019, p.28, 20190917095808
[16] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121; ‘LGBT members join pride parade in Ho Chi Minh City’, Tuoi Tre Online, 15 September 2019, 20200227102119
[17] ‘Gay Vietnam’, Travel Gay Asia, n.d., accessed 3 July 2017, CISEDB50AD4725
[18] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121
[19] Gay Vietnam, Travel Gay Asia, n.d., (accessed 3 July 2017), CISEDB50AD4725; Gay Hanoi, Travel Gay Asia, n.d., (accessed 3 July 2017), CISEDB50AD4726; Travel & Resources: HO CHI MINH CITY – SAIGON, Utopia, n.d. (accessed 3 July 2017), CISEDB50AD4728
[20] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121
[21] ‘Freedom in the World 2020 – Vietnam’, Freedom House, 2020, p.9, 20200514114358; ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.14, CIS38A80124354; ‘Transgender at work. Livelihoods for transgender people in Vietnam’, Hoang T-A and Oosterhoff, P, Institute of Development Studies, February 2016, pp.4, 15, CIS38A80128087
[22]‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, p.1, 20200214091242; ‘Being LGBT in Asia – Vietnam country report’, USAID & UNDP, August 2014, pp.27–31, CX324893; ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.14, CIS38A80124354; ‘Vietnam’s transgender citizens suffer in a grey area’, VNExpress, 2 January 2020, 20201118134044
[23] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p.747, 20210114072851
[24] ‘“My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam’, Human Rights Watch, 12 February 2020, pp.2, 13–14, 20200214091242; ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p.747, 20210114072851
[25] ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.18, CIS38A80124354
[26] ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.97, CIS38A80124354
The Tribunal asked research questions of the Country of Origin Information Services Section of the Department relevant to this matter. The questions and responses received on 5 August 2021 follow (underlining added):
What are the age ranges in Vietnam for compulsory military service for citizens. Is there any prospect of a 32- year-old male being conscripted?
A June 2020 Country of Origin Information Services Section (COISS) report provides recent, relevant information about compulsory military service, and the prospect of whether an individual beyond usual conscription age who has hitherto avoided military service would be conscripted upon their return to Vietnam.[27]
[27] ‘Vietnam: 20200615113439 – Military Service – South Vietnamese – Historical Legacies – Employment Discrimination’, COISS, 22 June 2020, 20200622145448
Vietnam’s current military service law came into effect on 1 January 2016.[28] Relevant articles of the law are outlined below:
[28] ‘Ten laws take effect as from 1 January 2016’, Ministry of Justice (Socialist Republic of Vietnam), 08 January 2016, CX6A26A6E2493
Article 12 says that male citizens aged 17 and over are subject to registration for military service.[29]
[29] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 12 (1) , 20200618131731
Article 30 says that Vietnamese citizens ‘turning to 18 years old shall be conscripted into the army’ and that the age range for conscription is from 18 to ‘under’ 26 years old, but that a citizen who enters university or college and postpones their conscription is eligible for conscription until they turn 28.[30]
[30] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 30, 20200618131731
Article 6 says that male conscripts will perform their military service in the ‘regular armed force of the People’s Army’.[31]
[31] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 6 (1), 20200618131731
Perhaps of relevance to the applicant, Article 7 says that ‘male citizens at the call-up age shall perform the military service in reserve force in the following cases’. These include circumstances in which a ‘male citizen older than the call-up age has not performed military service in regular armed force’.[32]
[32] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 7 (1a), 20200618131731
Article 19 of the law states that a Vietnamese citizen will not be required to undertake military service in a number of circumstances, including when they ‘exceed the age for military service in reserve force’.[33] This exact age is unclear, although Article 25 refers to the ‘service age’ of male ‘reserve non-commissioned officers and enlisted soldiers’ as those under 46 years old (Article 26 also provides some information).[34]
[33] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 19, 20200618131731
[34] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 25, 26, 20200618131731
Other exemptions include those specified under Article 13 (1) and Article 14 of the law:
Article 13. Entities must not register for military service
1. Citizens in any of the following cases must not register for military service:
a) Any citizen who is facing criminal prosecution; serving the prison sentence, non-custodial reeducation, bearing surveillance or citizen who has carried out the prison sentence but without expunging of criminal record;
b) Any citizen who is bearing education at communes or is being at reform school, compulsory re-education schools, compulsory detoxification centers;
c) Any citizen whose right to serve in People’s armed forces is revoked.[35]
[35] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 13 (1), 20200618131731
Article 14 says that ‘the disabled, people with fatal diseases, mental illness or chronic diseases according to the law’ are exempt from military service.[36]
[36] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Article 14, 20200618131731
A December 2015 summary of changes to the law contained on a Vietnamese legal website notes that individuals are eligible for the postponement or waiving of their military service in the following circumstances:
8. Postponement of military service
The following citizens shall qualify for postponement of military service:
- A person who is not healthy enough to perform his/her military duty in accordance with conclusions drawn by the Health Examination Council.
- A person who is the only breadwinner directly taking care of his/her dependent relatives whose capacity to work has been lost or who are not within the working age; a person who is living in a family suffering from serious property or human damage or loss inflicted by accidents, natural disasters and dangerous diseases, accredited by the communal People's Committee.
- A person who is a son or daughter of a sick soldier, a victim of Agent Orange whose capacity to work has been decreased from 61% to 80%.
- A person who has his/her older brother, sister or younger brother or sister being a non-commissioned officers or serviceman serving in the military, or a non-commissioned officer or soldier who is fulfilling his/her obligation to the People’s Public Security.
- A person who complies with residential relocation and expansion policies to settle in extremely underprivileged
communes for 3 first years of the Government’s socio-economic development projects decided by the People’s Committee at a provincial or higher level.
- A person who is an official, public servant or employee or youth volunteer assigned to work in regions faced with extremely difficult socio-economic conditions in accordance with laws and regulations.
- A person who is studying at a basic education institution, participating in a full-time undergraduate degree program or a full-time associate degree program offered by a vocational education establishment within a period of a training course for a training level.
9. Exemption from conscription for the military service
The following citizens shall qualify for exemption from the military service:
- A person who is a son or daughter of a martyr or of a first-ranked wounded war veteran.
- A person who is an older or younger brother of a martyr.
- A person who is a son or daughter of a second-ranked wounded war veteran, of a sick soldier whose capacity to work has decreased by 81% or more, or of a victim of an agent orange whose capacity to work has decreased by 81% or more.
- A person who is performing a ciphering duty but is not a serviceman of the military or the People’s Public Security.
- A person who is an official, public servant or employee or youth volunteer assigned to work in regions faced with extremely difficult socio-economic conditions in accordance with laws and regulations for a period of more than 24 months.[37]
[37] ‘10 new significant contents of the 2015 Law on Military Service’, Thư Viện Pháp Luật , Ms. Kim Kiều, 28 December 2015, CISEC96CF14512
Limited other reports provide information about the way in which military service works in practice. For example, the Department of Foreign Affairs and Trade’s (DFAT) December 2019 Vietnam report (which you state that you have already consulted) says that ‘military service is compulsory for males aged 18 to 25 years, and females can volunteer for active duty military service’:
The period of service depends on the force: 18 months for the VPA and Air Defence, and two years for the Navy and Air Force. Exemptions are available on several grounds, including for university students and people employed in certain professions. In practice, DFAT understands that while all males must register with the military, very few are required to serve for the full military service period. The US Department of State reported in 2018 that religious adherents are regularly excluded from military recruitment, and are not permitted to be commissioned officers. Local media reported in 2017 that enlistment had become stricter in recent years after legislators had accused wealthy families of paying bribes in order for their children to avoid military service.[38]
A 2014 news article about the (then proposed) 2015 military service law noted that, after completing their military service, all men remained reservists until the age of 45.[39]
Are identified homosexuals eligible for military conscription?
As noted in the response to Question One, Vietnam’s military service law contains information about groups or individuals ineligible for conscription. These do not appear to include homosexuals/LGBTI Vietnamese.[40] A 2014 USAID/United Nations Development Programme report said that it was legal for LGBTI Vietnamese to serve in the military.[41] No further relevant information was found. For information about general attitudes and treatment towards LGBTI Vietnamese, please see the February 2021 COISS Common Claims.[42]
Please provide evidence as to the treatment/mistreatment of known homosexuals in the military in Vietnam, particularly during compulsory conscription.
No information was found about the treatment or mistreatment of homosexuals/LGBTI people in the military in Vietnam. A November 2016 Country of Origin Information Services Section (COISS) report was also unable to locate country information about this.[43] For information about general attitudes and treatment towards LGBTI Vietnamese, please see the February 2021 COISS Common Claims.[44]
[38] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade, 13 December 2019, p.39, 20191213145121
[39] ‘Vietnam expands draft to net smarter soldiers’, Thanh Nien News, 04 November 2014, CX1B9ECAB7736
[40] ‘Law on Military Service (2015)’, Socialist Republic of Vietnam (Government), 19 June 2015, Articles 13 (1) and 14, 20200618131731
[41] ‘Being LGBT in Asia: Vietnam Country Report’, USAID/United Nations Development Programme, 2014, p.53, 20210804143125
[42] ‘Vietnam Common Claims - February 2021’, COISS, 23 February 2021, 20210223162424
[43] ‘Vietnam: CI161114153204684 – Homosexuality – Societal Treatment – Military Service’, COISS, 25 November 2016, CR0D9DEFA387
[44] ‘Vietnam Common Claims - February 2021’, COISS, 23 February 2021, 20210223162424
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Vietnam and accordingly his claims will be assessed against Vietnam.
Based on the evidence both by the applicant and [Mr A], the Tribunal accepts that they have been in a relationship since 2013, after meeting in 2010. The Tribunal notes that [Mr A]’s evidence in written claims is that they started living together in 2013, which is inconsistent with the applicant’s first declaration which indicated that they were living together from October 2011. In the hearing, the applicant did not know why his original statement made this claim, which he indicated was not correct.
The Tribunal does not think that the inconsistency is undermining of the truth of the applicant’s claims to have been in a relationship with [Mr A] for a significant period given the consistency and probity of other evidence by both the applicant and [Mr A].
It follows that the Tribunal believes that the applicant is homosexual and accepts that he would wish to practise as a homosexual on return to Vietnam. Although the applicant significantly delayed in applying for the protection visa which might be seen as undermining of the truth of his claims, given the cumulative impact of the evidence provided, the Tribunal is satisfied that the applicant is homosexual.
The Tribunal does however have credibility concerns with claims that his family have disowned him. Evidence by the applicant of contact with his family after he came to Australia in 2007 and telling them of his sexuality and their rejection was not convincing to the Tribunal.
The applicant indicated in the hearing that he has had only had one conversation with his family after arriving in Australia in 2007. After exploration in the hearing the applicant’s evidence was that this was a sole conversation with his mother about year after arriving. It was in this conversation that he told his mother about his sexuality, and that she was very upset. The applicant indicates that from this point on there has been absolutely no contact with his family although he has tried to contact them. The applicant indicated that they would not pick up calls having identified an international phone number and later changed their phone number so that he could not connect.
The Tribunal expressed incredulity that after the applicant arrived in Australia as a [Age]-year-old with his visit being funded by his parents that he would have no contact with his family for a year. The applicant then said he would communicate with his siblings via messaging applications and they would advise as to the status of his parents.
The Tribunal finds this highly implausible. The Tribunal does not consider it credible that the applicant would not maintain regular contact with his parents after arriving in Australia to continue high school as a [Age]-year-old.
The Tribunal also finds the scenario presented by the applicant that he had one phone conversation with his mother in relation to his sexuality and from that point on there was no subsequent contact with the family at all highly unlikely. At the very least, if the applicant’s family were upset at the applicant’s revealing of his sexuality, the Tribunal considers that there would at least have been some further contact to try and understand or redress the situation. The scenario put forward by the applicant does not have a ring of truth.
The scenarios presented by the applicant create credibility concerns that his family have rejected him as claimed.
The Tribunal indicated to the applicant in the hearing that DFAT information (extracted in this decision) indicates that same-sex relationships are legal in Vietnam and that there has been marked improvement in recent years for the LGBT community. There are LGBT friendly spaces in large cities, where the applicant is from. There are channels for connection including through social media and networking. Nevertheless, Vietnam is a traditional country and there remain problems based on identifying as LGBT. One in three experience discrimination within families, schools, workplaces or health providers. Gay people typically hide sexuality when seeking employment. Gay people often leave school early. Domestic violence is high for the LGBT community. DFAT assesses in summary that there is a moderate risk of societal discrimination and a moderate risk of violence.
The Tribunal put to the applicant that he would be returning to Vietnam as a mature man [of approximate age] and that he is from Ho Chi Minh City, a big city where there are fewer challenges in relation to LGBT identity and where connection within the gay community is easier and more available. The applicant maintained that he would nevertheless face a real chance of serious or significant harm on return to Vietnam living in the general community as a result of his sexuality, even in a big city. The applicant’s lawyer submitted the DFAT assessment of a moderate risk of violence is not qualified and that it is not applicable to those in big cities.
The applicant referred to the fact that he will need to undertake military service that he has failed to undertake. The applicant indicated that this will still be required because the applicant is within the reserve age for the army. This is confirmed in independent information extracted in this decision.
It was submitted by the applicant’s lawyer that the military would be the last bastion of conservative cultural values towards sexuality. It would be the last place where progress in relation to the LGBT community would be apparent. The Tribunal is inclined to accept this.
The applicant indicated that he had videos which depicted gay individuals in the military suffering from abuse. The Tribunal accepts the plausibility of greater harm suffered by LGBT individuals in the military given the traditional and discriminatory attitudes towards LGBT individuals in Vietnam. The Tribunal considers it very likely that this risk of harm is exacerbated in a military culture.
Including given because the Tribunal has doubts that the applicant has been rejected by his family, that he would be returning to a big city and doing so as a mature adult, the Tribunal considers that it is a relatively balanced decision whether the applicant would face requisite harm on return to Ho Chi Minh City just living in the community generally as a result of being gay. The Tribunal notes significant progress for the LGBT community in Vietnam, although acknowledging a continuing conservative society and problems.
However, the Tribunal accepts that the applicant will be required to fulfil his military service duties. The Tribunal is satisfied that the applicant would face a real chance of serious or significant harm in the military if he were to reveal his sexuality given the conservative nature of Vietnamese society which would be magnified in a military culture. The Tribunal accepts the plausibility of increased harm suffered by individuals in the military in Vietnam who are gay. The Tribunal is satisfied that the applicant faces a real chance of serious harm in the military as a result of his sexuality.
The Tribunal considers the serious harm would be a combination of physical mistreatment and severe discrimination. The Tribunal considers it likely that the applicant would hide his sexuality to avoid harm. However, it is clear from case law that an applicant cannot be expected to modify his behaviour in relation to a refugee criterion attribute, namely the applicant belonging to a particular social group of homosexuals.
The Tribunal considers the reason for the harm would be for the significant and essential reason of his sexuality. The Tribunal considers the serious harm the applicant has a real chance of facing is systemic and discriminatory. Given that the harm would occur in the context of compulsory military service, the applicant cannot relocate within Vietnam to avoid the harm.
Given these findings, the Tribunal is satisfied that the applicant faces a real chance of serious harm based on being from the particular social group of homosexuals.
In summary, the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons set out in s 5J(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2812

5 July 2022

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