1621504 (Refugee)

[2021] AATA 3962

1621504 (Refugee) [2021] AATA 3962 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621504

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:David McCulloch

DATE:20 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2021 at 1:29pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam –sexuality – particular social group – be perceived as being homosexual or bisexual in Vietnam – delay in lodging the visa application – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor 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 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 and Border Protection on 2 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 9 December 2015. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 10 August 2021 at 12pm.

4. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. 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.

   CRITERIA FOR A PROTECTION VISA

6. 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, 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.

7. 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.

8. 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).

9. 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–5LA, which are extracted in the attachment to this decision.

10. 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

11. 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 in advance of the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 decision under review should be affirmed.

13. The applicant was granted a student visa (Subclass 573) on 28 May 2014 and arrived in Australia [in] June 2014. The applicant applied for the protection visa on 9 December 2015.

14. The following information is apparent from the application for protection forms. The applicant was born on [date] in Hai Duong, Vietnam. The applicant is a Buddhist of Vietnamese ethnicity who speaks, reads and writes Vietnamese and speaks English. The applicant has never married nor been in a de facto relationship. The applicant’s mother, father and brother reside in Vietnam, and the applicant is not in contact with them. The applicant lived at one address in Hai Duong City, Hai Duong, Vietnam from birth until June 2014. The applicant attended primary and secondary school from 2001, graduating from [a] High School, Hai Duong, Vietnam in May 2013. The applicant has never been employed.

15. 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 my belonging to a particular social group- ie a bi-sexual man.

    3.     I also rely on the complimentary protection provisions for assessment of my claims.

    4.     I am a Vietnamese national and have no other nationality or right to enter or reside in a third country.

    5.     I am the holder of a Vietnamese passport no: [deleted]. I annex herewith a copy of my Vietnamese passport.

    6.     I initially arrived in Australia in June 2014, on a student visa.

    7.     Since my initial arrival in Australia, I have never travelled back to Vietnam.

    8.     I was born a Buddhist but do not consider myself to be a practicing member of my faith.

    9.     I fear returning to Vietnam on the basis of my sexual orientation. I annex herewith a copy of my typed statement in Vietnamese and translation.

    10.  I also annex herewith photographs of my various gay friends in social settings.

    I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declaration act 1959, and I believe that the statements in this declaration are true in every particular.

    Applicant’s statement:

    When I was small, just like the other kids, I also have a happy childhood with my family and friends. I also go to school, play the game for the boys such as: football, marbles shooting … All things are going normally until I was [age], when I realized things “not normal” as I ever thought. I started noticing some changes inside myself.

    I said vary little, had few friends, never confided something to anyone. In romance, though I liked any girl, I did not dare to think of them, just quietly let the emotion pass. Until high school, my fate was to meet a boy who was completely different from me. He was very optimistic, cheerful, and talkative. He loved art, had a well-to-do family and full love by all parents and siblings. He made my life change, I did laugh more, and understood how happiness and warmth were… After knowing my situation, he paid more attention to me, listened to me and led me to travel to other areas for relaxing. We became very close like a body and its shadow. I used to visit his home. His parents and his sister also loved me.

    My tragedy happened after graduation from high school. we had a group of very close friends in which there was one girl liked him and they both liked each other formally. But their love lasted for just a few days then broke up because he was not yet ready and she was still around with his ex-boyfriend. Seeing him crying, I was heartbroken and care more about him. We went out a lot. Every time we walked together, he held my hand. I had a bit of fear, worry about it, but he told: “It’s normal, that’s nothing.” This time, there was an intense fighting in my mind for the abnormality between me and him. But then I realized that he was just trying to make me happy, so I did not think any more.

    We were still like that, sticking together, hug each other when riding a motorbike, sitting on the bus and sharing the earphone. We met each other every day. Whenever I was angry or sad, he knew the reason and tried to provoke me to laugh, made me happy. Even, he did text me: “I love you”, told me that I was wife, he was husband … I did not think much, just wanted to be beside him. We did not do anything or went further, our emotion were very pure, innocent. All the people in the group teased me that I was his tiny wife.

    But our story seemed to go to his family and he had to study in five years away. At that time, it collapsed down, I cried a lot and that was when I realized I was bisexual I was very anxious and fearful when I knew that I was bisexual. I did not know should I speak out for family, friends or not. I was really panic at that time; things seemed to have changed very much. Until a day when I decided to tell it to a few friends that I was bisexual – I thought everything would be fine, and then everyone would understand and sympathize on me. But it did not happen to me. when I started talking to a few friends, initially it was only sarcasm joking … then shunned, and the laughter of boys when one boy called me a gay. Everything was completely opposite to what I thought before. I did not blame anybody because … I was living in Vietnam, a social which consider bisexual a stigma. People as me are supposedly immoral, wrong habits, against the Vietnamese customs and are considered to be pathological and would be discriminated, etc. it went worse when family and my loved ones knew this … cousins, neighbours looked at me with different eyes, I could not describe the feeling of a bunch of people sitting behind me and pointed to no stop talking. My parents when they first knew about this … they were sad, they were arguing a lot, certainly for that. Then they began to understand because anyway I was their child. They shared with me much more especially my mom. But they still still were very sad and ashamed of me to everyone.

    I feared and began to learn about gay people, like their heterosexual … unfortunately because I was living in Vietnam. I have heard and read many stories about homosexuals, heterosexuals discrimination, even violence in Vietnam. And I am not strange to stories of gays being beaten, discriminatory, even being driven out of family. I know there are cases that friends threw books into their faces and stopped them from going to school. But when reflecting with teachers, teachers also periodically discriminate with gay students, transgender. Many students admitting their gay status were associate with having to leave school. According to a survey by the Centre for Creative Initiatives in Health and Population (CCIHP) conducted with 520 gay, bisexual and transgender people found that about 41% of these have suffered discrimination and violence force in schools or universities.

    Results from a recent study by the Ministry of Education and UNESCO on gender-based violence related to the school in six provinces and cities of Vietnam also showed that student still considered teasing gay people LGBT “harmless prank” (19% agree).

    Because of these reasons, homosexuals or bisexuals like me in Vietnam could not open and dare to remain true to our sex … then my family gave me to study in Australia because parent know I need to go somewhere else to cut away the social stigma … and things have become better since I came here …

16. The applicant submitted the following news articles to the Department:

    ·By Staff Reports for unknown publisher, published 10 January 2015, entitled ‘Same-sex marriage now legal in Vietnam, but without government recognition’, which states that while same-sex marriages can now take place, the government does not recognise them or provide legal protection in cases of dispute. According to the article, Vietnam’s lawmakers had initially considered recognising same-sex marriage, but believed the society needed to accept gays and lesbians in general.

    ·By Dominique Nosbergen for WORLDPOST, published 18 October 2015, entitled ‘Vietnam Has Been Praised As A Leader In LGBT Rights. Activists Beg To Differ’, which reports that while Vietnam is evolving in LGBT issues, LGBT people face widespread abuse and discrimination, particularly in their homes due to stigma and misunderstanding, where some have suffered assaults by family members.

    ·By unknown author for unknown publisher, published 18 January 2016, entitled ‘Gay weddings planned as Vietnam marriage law is repealed’, which states that despite same-sex marriage not being legally recognised, the revised law places Vietnam at the forefront of countries in Asia becoming more accepting of gay people. The article also discusses the abolished fines and mentions that Vietnam is the only Southeast Asian country that has taken such a big step toward accepting same-sex marriage.

    ·By Shianee Mamanglu-Regala for WORLD, published 20 January 2016, entitled ‘Anti-gay discrimination persists in Vietnam despite lifting of same-sex marriage ban’, which states that despite the lifting of the ban on same-sex marriage, gay people, particularly the youth, continue to suffer discrimination such as serious stigma and bullying in schools. The article also states that in 2013, the government abolished fines that were imposed on same-sex weddings but does not recognise same-sex marriages. The article suggests that Vietnam is a leading country in Southeast Asia in the LGBT rights movement.

17. Various photos of the applicant with other individuals were also provided to the Department.

    Independent information sourced by Tribunal

18. The 2019 DFAT report on Vietnam provides the following information:

    Sexual Orientation and Gender Identity

    [3.79] 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.

    [3.80] 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.

    [3.81] 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.

    [3.82] 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.

    [3.83] 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.

    [3.84] 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].

1. 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

   Hearing, credibility, findings and assessment

2. 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.

3. 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.

4. The Tribunal is satisfied that the applicant is a citizen of Vietnam and accordingly his claims will be assessed against Vietnam.

5. The Tribunal has a number of credibility concerns with claims by the applicant that he is bisexual or homosexual. These concerns follow.

6. Firstly, the applicant has provided inconsistent evidence as to him telling friends in Vietnam that he was gay or bisexual. The applicant’s written claims indicate that he told a few friends about his sexuality. The applicant also in interview with the delegate indicated that he had revealed at least to one other person his sexuality.

7. However, in the hearing, when the Tribunal initially asked the applicant whether he told others in Vietnam about his sexuality, he indicated that he did not. The applicant indicated this on at least two occasions in the hearing. The applicant indicated that people began to suspect he was gay because of his mannerisms.

8. The Tribunal put to the applicant in the hearing the inconsistency with this evidence as to his written claims that he had told friends in Vietnam about his sexuality. In response, the applicant then changed his evidence to indicate that he told his very close male friend in Vietnam that he was gay/bisexual and that perhaps he had told others. The Tribunal noted to the applicant that this was not consistent with what he had previously told the Tribunal. The Tribunal also noted that the written claims refer to multiple friends being told. In response the applicant indicated that what he meant to say was that many people were aware of him being bisexual, rather than their having been told by the applicant.

9. This is not what is indicated by way of the clear meaning of the applicant’s written claims that he told multiple friends that he was bisexual. The applicant has also been internally inconsistent in the hearing changing his evidence when the inconsistency with written claims was pointed out to him.

10. The various inconsistencies are undermining of the applicant’s credibility in terms of the circumstances of his sexuality and others being told or knowing in Vietnam.

11. Secondly, there is an inconsistency in claims by the applicant as to the attitude of his parents, particularly the applicant’s father, when they realised that the applicant was gay/bisexual.

12. In the hearing, the applicant indicated that his parents found out about his sexuality when he was in year [level]. The applicant indicated that initially they were both upset but that his mother, who loved him, facilitated the applicant’s travelling and studying in Australia, which was funded by the father, to escape the difficulty in Vietnam as a result of being gay/bisexual.

13. In contrast, the applicant indicated in the hearing that his father had an initial significantly adverse reaction to the applicant being gay/bisexual which continued as time progressed.

14. The Tribunal put to the applicant in the hearing, that the claimed significant disapproval of the applicant’s father is not consistent with his written claims which state that his parents, while originally upset, began to understand because the applicant was their child. It is indicated that the parents began to share with the applicant more, particularly the applicant’s mother, but that there was still a degree of shame and sadness.

15. Thus, the written claims clearly indicate at least some degree of understanding by both parents, which is inconsistent with the applicant’s evidence in the hearing as to the continuing strong disapproval by the applicant’s father.

16. In response, the applicant indicated that what he meant to say in the written claims in terms of understanding applied only to his mother. The Tribunal put to the applicant that the written claims make clear that this was the case for both his parents. The applicant repeated that it really only pertained to his mother, and not his father.

17. The Tribunal maintains credibility concerns in relation to the applicant’s inconsistency in evidence in this respect.

18. Thirdly, it is not plausible that the applicant’s father would expend the not insignificant resources required to fund the applicant’s travel to and study in Australia, if he had a significantly adverse attitude towards the applicant on the basis of his sexuality.

19. In response to this issue in the hearing, the applicant indicates that this is because his father had disowned him and wanted him far away.

20. The Tribunal is not satisfied that if the applicant’s father had a significantly adverse attitude towards the applicant based on his sexuality and wanted him out of his life, he would expend the resources on the applicant to bestow on him the significant benefit of being able to live and study in a developed country.

21. The Tribunal considers that if the applicant’s father had the negative attitude to the applicant that has been claimed, that he could have excluded the applicant from his life, with the applicant remaining in Vietnam.

22. The funding of the applicant’s travel to and study in Australia by the applicant’s parents is undermining as to claims that the applicant’s father had a severely adverse response to information as to the applicant’s sexuality. This reinforces doubts in relation to the applicant’s credibility generally in relation to sexuality.

23. Fourthly, the lack of the applicant’s same-sex relationships in Australia or otherwise living in any respect consistent with being gay/bisexual, is significantly undermining of the fact that the applicant is gay/bisexual. This is in the context of the applicant claiming to have fled Vietnam on the basis of his sexuality and having had the freedom to practise his sexuality in Australia for the last approximately seven years.

24. In the hearing, the applicant indicated that he has had no romantic or same-sex relationships in Australia. The applicant indicated that this is because he worries as to his situation and his visa status which he is preoccupied with. The applicant indicates that he does not utilise any gay online dating sites.

25. The applicant indicates that he has not frequented gay social venues such as bars and clubs because he does not have the financial resources to do so. When the Tribunal explored this further with the applicant, he indicated that his mother sometimes sends him money and he is also supported by people in Australia.

26. The applicant acknowledges that at the time he was studying he did work for a period as a [Occupation 1].

27. In the hearing, when the Tribunal asked the applicant about gay friends, he indicated that he previously had one gay friend. This person, claims the applicant, transitioned to female and the applicant has subsequently lost contact with him. This is the only gay friend that the applicant claims to have made in Australia.

28. The Tribunal struggles to accept that if the applicant came to Australia at the age of [age] seeking to escape Vietnam due to his sexuality that in the ensuing seven years he would not have engaged in same-sex relationships, or more than one relevant friendship or have had at least some involvement in same-sex activities in bars and clubs with the freedom to legally engage in such activity.

29. The Tribunal finds it highly unconvincing that the applicant would have been impeded in such activity as a result of concern as to his circumstances and visa status, or that, even acknowledging a tight financial situation, that he would have engaged socially in at least some same-sex external activities such as at gay bars and clubs which are readily on offer in Sydney.

30. The applicant’s lack of evidence as to romantic, sexual or social activity in Sydney consistently with being gay/bisexual is seriously undermining as to the credibility of the applicant’s claims to be homosexual or bisexual.

31. The Tribunal considers these four credibility issues. Cumulatively considered, they are seriously undermining of the credibility of the applicant as to his claimed sexuality. The Tribunal is not satisfied that the applicant has been truthful in this respect.

32. The Tribunal is not satisfied that the applicant is homosexual or bisexual. The Tribunal is not satisfied that the applicant’s friends or acquaintances in Vietnam have known or suspected that the applicant was gay or bisexual. The Tribunal is not satisfied that the applicant’s parents came to know of the applicant’s bisexuality and had any adverse reaction as claimed. The Tribunal is not satisfied that the applicant came to Australia fleeing harm in Vietnam based on his sexuality. The Tribunal is not satisfied that the applicant has lived a gay or bisexual lifestyle in Australia or engaged in any same-sex relationships. The Tribunal is not satisfied that the applicant in Australia has had the one gay friend he has claimed. The Tribunal is not satisfied that the applicant would be homosexual or bisexual on return to Vietnam or be perceived as being homosexual or bisexual in Vietnam.

33. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

34. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons set out in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as necessary and foreseeable consequence of being removed from Australia to Vietnam, that there is a real chance of him suffering significant harm.

35. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. 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, the applicant does not satisfy the criteria in s.36(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a protection visa.

   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.

   …