1621559 (Refugee)
[2021] AATA 5351
•20 December 2021
1621559 (Refugee) [2021] AATA 5351 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621559
COUNTRY OF REFERENCE: Vietnam
MEMBER:Mr S Norman
DATE:20 December 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 December 2021 at 1:40pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – homosexual man – inconsistent evidence – internal relocation – Ho Chi Minh City – failed asylum seeker – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424
Migration Regulations 1994 (Cth), Schedule 2Any 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
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). The applicant who claims to be a citizen of Vietnam, applied for the visa on 10 March 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant attended a Tribunal hearing on 7 December 2021. Shortly prior to the hearing, the applicant’s agent advised the Tribunal they were no longer acting for the applicant. The Tribunal was assisted by an interpreter at 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 (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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history:
The applicant’s migration history included:
Date Event details 10/10/2013 [Student] visa granted [date]/11/2013 Arrived in Australia with a [Student] visa 10/03/2016 Lodged a Protection visa application 23/04/2016 Bridging Visa A granted 10/01/2017 Bridging Visa A expires The applicant’s receiving country:
With the Protection visa (PV) form (or PV application), the applicant lodged a certified copy of the bio-data page of his Socialist Republic of Vietnam passport (expiry date XXX 2023[1]). Based on the evidence, the Tribunal accepts the applicant is a citizen of Vietnam and that Vietnam is his receiving country.
The applicant’s claims:
[1] Department – folio 4.
In his PV application, the applicant (DOB: [date]) claimed:[2]
[2] Department - from folio 50.
· He resided at [Town 1] – [Ward 1] – [District 1] – Bac Ninh in Vietnam (approximately [number] kms [direction] of Hanoi) between [DOB] and November 2013[3]
· he was born a Buddhist but was not committed to the faith; he initially arrived in Australia on a Student visa in November 2013 (and he had not returned); he had proposed to study a Diploma in [Discipline 1] at [College 1] (Sydney)
· his parents and a brother continued to reside in Vietnam. He also had a brother who resided in [Country 1] and another brother who resided in [Country 2]. He said another brother is currently in Australia on a Student Visa
·he said he first realised he was homosexual at 16 years of age. He said he remained a ‘closet gay’ in Vietnam, fearing coming out due to familial and societal rejection. He said he had only told his younger brother and the brother in [Country 1] that he is gay - the brother in [Country 1] is also gay (at hearing the applicant said he had [number] brothers)
· When the brother in [Country 1] had informed his parents that he was a homosexual, his parents did not accept this and refused to talk to him. The brother in [Country 1] had not returned to Vietnam since travelling to [Country 1] almost 7 years ago
· In writing, the applicant said he had ‘one’ secret gay relationship while in high school in Vietnam. This relationship lasted approximately two years
· However, after arriving in Australia in November 2013 (at which time he was living independently and almost [age] years old) the applicant felt ‘more freedom to express himself and live openly as a gay man’. His parents still did not know he was or is a homosexual and he feared telling them as they would withdraw their financial (and other) support, as will other family members, and he would have to abandon his studies
· he fears being physically harmed in Vietnam, if he were to reside as an openly gay male. He also fears severe discrimination in the workforce, health and education - as discrimination of homosexuals is widespread in Vietnam. He said the Vietnamese authorities largely remained indifferent to the plight of openly gay men and women. He said the authorities portray a sense of tolerance to the international community, but in practice the situation is different
· he said that if he returned to Vietnam he would have to ‘revert to being a closet gay in order to avoid potential physical harm and discrimination’
[3] Department – folio 30.
The applicant’s (now former) gay partner said:[4]
· he initially arrived in Australia on a Student visa in 2014 as an international student from Vietnam. He was then studying a [Discipline 2] course at [University 1]
· he said he and the applicant were in a gay relationship after having met in [Suburb 1] in April 2015; that they entered a formal relationship approximately two weeks after meeting and had then moved in together in October 2015
· they love each other, enjoy each other’s company, socialise together, share a lot of things in common such as Vietnamese heritage and their mutual fear of being in an open gay relationship in Vietnam. He also said he and the applicant are known amongst a group of close friends as a gay couple
· both of their parents were not aware they were in a gay relationship and both believed the applicant and his partner lived together as friends
[4] Department – folio 63.
In their decision, the delegate noted that at the Department interview on 23 November 2016, the applicant claimed to have been in a homosexual relationship in Vietnam for two years; and he claimed to have been in a homosexual relationship with a Vietnamese man in Australia (a student), whom he had met in April 2015.
The delegate referred to the ‘Studies of Society, Economics, and Environment’, a non-profit organisation working for the rights of minority groups, which had released statistics reporting approximately 1.65 million people in Vietnam who identified as LGBT (something the Tribunal had also referred to at hearing). The delegate also noted the online gay magazine, Gay Times, said that life had become easier for gays and lesbians in Vietnam in the prior 10 years.[5] It was said that Vietnam was taking the lead in gay rights in South-east Asia.
[5] UK Home Office, Country of Origin Report for Vietnam, 2012.
After then noting the applicant had provided what were said to be scanned photos taken at the Sydney Mardi Gras parade, the delegate said that when asked questions about his gay relationship in Australia, the applicant’s responses were (words to the effect) vague and general. The delegate eventually accepted the applicant was a homosexual as claimed; however, the delegate was not satisfied the applicant’s fear was well-founded.
At hearing, the Tribunal noted the applicant had claimed to have travelled to Australia in order to study (arriving November 2013). He explained he successfully completed a 12-month English language course but then stopped further studies (at hearing the applicant said he ceased studying ‘around 2015’). When asked (words to the effect) why he then remained in Australia in breach of his Student visa conditions and waited until 10 March 2016 (many months after he ceased his studies) to lodge a PV application, the applicant said he only applied for the PV after he found out about the PV in Australia online.
The Tribunal notes it issued a s.424(2) letter dated 15 July 2021, to his authorised recipient (agent), requesting any additional and or updated information that is relevant to the applicant’s case (due by 29 July 2021). By agent email of 27 July 2021, it was stated:
We refer to the above matter and to your invitation to provide information letter dated 15 July 2021.
We are instructed by our client that there is no additional and or updated information at this stage, however further supporting submissions may be submitted prior to 26 August 2021.
No further material evidence was lodged. When then discussed at hearing, the applicant said his parents knew he was a homosexual even when he was in Vietnam (he is now [age] years old and he was almost [age] years old when he departed Vietnam). The Tribunal said his PV application referred to his parents in Vietnam not knowing about his alleged homosexuality; and that he feared telling them as they would withdraw their financial (and other) support, as will other family members, and he would have to abandon his studies (though the applicant appeared to have abandoned his studies since ‘around 2015’). At hearing, the applicant also said his family had already withdrawn their financial support for him in Australia in 2015, which is again inconsistent with his claim to fear they would do this if his homosexuality became known to them, and which claim was included in his written PV application lodged 10 March 2016.
Regarding when the applicant’s parents knew of his homosexuality, the applicant eventually said that it was ‘around 2015’, at which time he had entered into a homosexual relationship with a man in Australia (the abovementioned former partner). That relationship was said to have ceased in late 2018. However, in his PV application (lodged 10 March 2016), and in the delegate’s decision (made 2 December 2016), the evidence included that his parents did not know about his homosexuality.
When asked to comment about this inconsistency, the applicant repeated he was a homosexual, that he was in a relationship at 16 years of age, that he had lied to his parents about his homosexuality in Vietnam, though he subsequently said they knew he was a homosexual when he was in Vietnam. The Tribunal accepts this evidence had arisen up to 8-10 years prior to the Tribunal hearing. However, these were allegedly significant events in the applicant’s life and had caused him to ‘flee’ Vietnam; and they could have been readily included in the written PV form if true. That the applicant provided inconsistent evidence about (ie) whether his parents knew of his homosexuality in Vietnam, caused the Tribunal to doubt he was recalling evidence within his personal experience; and to consider his credibility.
Next, at hearing and when asked about any homosexual relationships the applicant had in Vietnam, he said ‘some’. The Tribunal understands the applicant eventually said he had around three such relationships. The Tribunal attempted to ascertain whether these relationships were physical and/or friendships, but as the applicant did not wish to respond, the Tribunal chose not to press the issue. However, in his PV form, the applicant only referred to one ‘secret gay relationship while in high school, and this lasted for approximately two years’.
When asked to comment about the inconsistency, the applicant repeated some of his material claims, including that he was ‘closeted’ in Vietnam, that he was able to live openly as a gay man in Australia, and that there is no stigma in Australia. However, after considering all the adverse findings herein, the Tribunal has serious doubts the applicant was or is a homosexual (as claimed); or that he was or is bisexual (which was not claimed).
Be that as it may, and for the purposes of this decision, the Tribunal proposes to accept the applicant is a homosexual (but not a bisexual and not a transgender), and his parents in Vietnam know of his homosexuality (as the Tribunal understands he referred to at hearing). The Tribunal will accept the applicant was in one homosexual relationship in Vietnam and after that ceased, one in Australia – and the relationship in Australia ceased towards the end of 2018. The Tribunal will also accept the applicant attended some gay venues in Australia, and that he attended the Sydney Gay Mardi Gras, on occasion.
Based on the accepted evidence and the country information set out herein, the Tribunal will accept that for reasons of his homosexuality, the applicant has a real chance of suffering serious (or significant) harm from his conservative family or the conservative small rural community, in his home area of [Town 1] – being some [number]kms [direction] of Hanoi.
Regarding whether the applicant has a real chance of serious (or significant harm) in all areas of Vietnam, the country information stated:
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 [Ho Chi Minh City], 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. … 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.
…..
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 … and the availability of LGBTI support services and networks.[6]
[6] DFAT COUNTRY INFORMATION REPORT VIETNAM, 13 December 2019.
Further, the government has introduced targeted medical services; for example, in January 2019, the Binh Dan Hospital in Saigon (Ho Chi Minh City) opened Vietnam’s first clinic catering specifically to members of the LGBT community.[7] The Tribunal also notes that mainstream Vietnamese media – which is controlled by the government – increasingly promotes the view that being gay is normal.[8] LGBTIQ+-friendly spaces, including coffee shops and art spaces, exist in Hanoi and Ho Chi Minh City.[9] However, places to meet on a day-to-day basis remain limited and many Vietnamese LGBTIQ+ people remain discreet in expressing their sexuality.[10]
[7] Vietnam’s first LGBT-friendly clinic provides relief from illness and prejudice', VNExpress, 29 January 2019, 20190130103506.
[8] ‘Gay Vietnam’, Travel Gay Asia, n.d., accessed 3 July 2017, CISEDB50AD4725.
[9] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 13 December 2019, p.32, 20191213145121.
[10] 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.
Despite increased tolerance by the government, societal discrimination and stigma against LGBTIQ+ people remains widespread and is worst towards transgender people.[11] Discrimination is most pervasive in schools, health care and the work place, although it also occurs within some families.[12] Vietnamese LGBTIQ+ youth face widespread discrimination and violence at home and at school.[13] The belief that same-sex attraction is a diagnosable, treatable, and curable mental health condition is common.[14] Violence against LGBTIQ+ people is much less common than other forms of discrimination, such as verbal insults and online abuse.[15] 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.[16]
[11] 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.
[12] “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.
[13] ‘World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, p.747, 20210114072851.
[14] '“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.
[15] ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.18, CIS38A80124354.
[16] ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.97, CIS38A80124354.
At hearing, the applicant said (words to the effect) the information considered by the Tribunal was superficial and did not reflect the realities in Vietnam. However, there are many independent news/information sources which comment about Vietnam (including the sources referred to in this decision), and the Tribunal said it may not (and now does not) accept his submission was correct. The applicant also said the government allows only some information to be reported, but the Tribunal notes the information before it also indicated the government does not consider LGBTI issues to be politically sensitive.
After then putting the gist of the country information to the applicant at hearing and referring to whether he may safely relocate within Vietnam, the applicant said he can live openly as a gay man in Australia. When then asked repeatedly about how he does this, the applicant eventually said he was scared in Vietnam, he can attend the Gay Mardi Gra in Sydney, he can sometimes attend gay venues, he is more confident in Australia, Australia has freedom of expression (to live as an openly gay man), and as long as a person obeys the law, they have no problem.
Regarding obeying the law, the Tribunal notes that when asked how he supported himself financially in Australia during the COVID-19 pandemic, and at which time he said he was not employed for around 12 months, he initially did not wish to say how he obtained monies as it was a ‘taboo’, and or a ‘sensitive or touchy’ subject. Eventually the applicant explained that he made money online engaging in trading in virtual currency. The applicant also admitted that he was not aware whether this was lawful in Australia, so he did not wish to mention it. That said, and irrespective of whether it was lawful, that the applicant made no claimed attempt to find out has satisfied the Tribunal his behaviour in Australia, may not always be guided by whether an activity is lawful. This is also a reason that caused the Tribunal to be concerned about the applicant’s credibility.
Next, the Tribunal also understands that persons cannot be expected to be discreet in the expression of fundamental human rights. That being said, the applicant’s claimed openly gay activities in Australia would appear to have been modest (even after a lengthy stay in Australia) – and there did not appear to be any evidence he may wish to change his behaviour should he return to Vietnam. Based on the evidence considered, neither is the Tribunal satisfied there is a real chance the applicant’s apparently modest lifestyle would give rise to a real chance he would suffer serious (or significant) harm in Ho Chi Minh City.
Amongst other things, there is a ‘Gay Mardi’ Gra in Vietnam (including in Ho Chi Minh City - HCMC); there is now a dedicated medical facility in HCMC; there is safe gay spaces in HCMC; and as noted at the hearing, the applicant had appeared to have abandoned his studies so there may not be (and the Tribunal accepts there is not) any risk of discrimination at school. As also stated above, the mainstream Vietnamese media – which is controlled by the government – increasingly promotes the view that being gay is normal[17] (and the Tribunal has not seen any more recent material evidence to indicate this is not still correct). Further, given DFAT had advised ‘most societal discrimination and violence against LGBTI individuals is within the domestic context’, the Tribunal believes the applicant may avoid a real chance of serious (or significant) harm, if he relocated within Vietnam (ie to HCMC).
[17] ‘Gay Vietnam’, Travel Gay Asia, n.d., accessed 3 July 2017, CISEDB50AD4725.
At hearing, the applicant also said that in Australia he had worked in a restaurant (as a [Occupation 1]), and for around the last two years he had worked as a [Occupation 2] after having learnt that skill ‘on the job’ (he did not have formal qualifications). He had also successfully completed an English language course in Australia. Regarding whether he could rent property, obtain employment etc in Vietnam, given the applicant’s education and work experience in Australia (referred to herein), the Tribunal believes he could seek employment commensurate with his skills in HCMC; and the Tribunal notes the above DFAT view, that as ‘most societal discrimination and violence against LGBTI individuals is within the domestic context, LGBTI individuals can typically relocate within Vietnam’.
However, the Tribunal does accept the applicant may not be able to (at least initially) admit to his homosexuality when seeking employment or seeking to rent a property in Vietnam (and in particular, HCMC), due to the conservative values that continue. However, after discussing his evidence with him, the Tribunal does not believe he would wish to do so; and I have not seen evidence that he would need to do so.
The Tribunal also notes the information before it includes that people remain discreet in expressing their sexuality in Vietnam.[18] The Tribunal accepts that if the applicant’s sexuality were to become apparent after renting a property or gaining employment ie, in HCMC (assuming he did not choose to utilise his skills and obtain self-employment as a [Occupation 2]), the applicant may be subject to some harm including if not limited to, verbal insults.[19] However, the Tribunal again notes the DFAT advice that LGBTI persons may ‘typically seek employment and then come out, to prevent their sexuality affecting recruitment decisions’. The Tribunal does not accept that such persons would ‘come out’, if the harm they risked was serious (or significant). Neither do I accept the present applicant would suffer serious (or significant) harm if he were to ‘come out’ after obtaining employment or a rental property (including in HCMC).
[18] 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.
[19] ‘“Is it because I am LGBT?” Discrimination based on sexual orientation in Viet Nam’, UNDP, 21 June 2016, p.18, CIS38A80124354.
In an agent email dated 23 November 2016, it was claimed that while same-sex marriages have been legally recognised, the Vietnamese authorities do not provide legal protection in cases of dispute. The Tribunal accepts this may be correct, but also notes (ie), that upon the passing of a party in a same sex relationship in Vietnam, arrangements as to who receives the property of the deceased, may have to have been expressed in a will.[20] Therefore, though LGBTI persons in Vietnam may not have the same protections as exist in Australia, without more this does not appear to constitute serious (or significant) harm.
[20] INHERITANCE, TESTAMENTS & SUCCESSION PLANNING IN VIETNAM, INHERITANCE, TESTAMENTS & SUCCESSION PLANNING IN VIETNAM - DR. MATTHIAS DÜHN, LL.M. - VIET DILIGENCE LEGAL VIETNAM - TAGS: VIETNAM - TESTAMENTS - THE REAL ESTATE CONVERSATION (RETALKASIA.COM), ACCESSED 2 DECEMBER 2021.
Regarding the applicant’s family, at hearing he said his mother now speaks to his gay brother in [Country 1], but his father does not. The applicant also said his family would pressure him to marry in Vietnam. However, and as referred to at hearing, the Tribunal may find (and now does find), that such pressure etc, can be largely avoided (if not entirely negated) by relocating to HCMC.
The Tribunal said (words to the effect) it understood the applicant would be able to change his household registration (see below country information – and the applicant did not dispute this at hearing); that he appeared to have skills that would allow him to work in HCMC; and there appeared to be reasonable LGBTI support services and networks in HCMC. The applicant did not believe it was safe. As noted above, the Tribunal was also satisfied the applicant lived an apparently modest homosexual life in Australia, and there was no evidence to indicate he would not continue to do so in Vietnam.
The Tribunal accepts the applicant may prefer to live with the freedom available to homosexuals in some (not all) areas of Australia, but without more this does not mean that residing within the freedoms/restrictions that were presently available for the applicant in Vietnam (or HCMC), would give rise to serious or significant harm for him. The Tribunal also understands the UNHCR had advised (in part):
54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. … [21]
[21] HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS and GUIDELINES ON INTERNATIONAL PROTECTION UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES REISSUED GENEVA, FEBRUARY 2019.
However, and even after considering the accepted evidence cumulatively, the Tribunal is not satisfied the real chance of persecution (serious or significant harm) relates to all areas of Vietnam (and therefore, the applicant may safely relocate to HCMC).
Relocation:
Regarding relocation within Vietnam, the country information stated:
5.19 While the Constitution allows for freedom of movement, citizens staying overnight away from their place of residence are required to register with local police. Authorities reportedly enforce this requirement more strictly in some Central and Northern Highlands districts. Citizens who fail to register movements are subject to fines, and may face difficulties in accessing legal residence permits, public education and health care. …’[22]
However:
5.21 Vietnam is experiencing increasing migration and mobility, including internal migration. Rapid economic development and increasing job opportunities are generating large migration flows from rural to urban and peri-urban regions. There are an estimated six million internal migrants, though the number is likely substantially higher including unregistered migrants. Government figures report around 25 to 30 per cent of Vietnam’s largest city populations are comprised of migrants. Younger members of ethnic minority groups schooled in the Vietnamese language are more likely to overcome linguistic and cultural barriers associated with relocation.[23]
[22] DFAT COUNTRY INFORMATION REPORT VIETNAM, 13 December 2019.
[23] DFAT COUNTRY INFORMATION REPORT VIETNAM, 13 December 2019.
For the reasons that have been set out above, even after having considered the accepted evidence cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in HCMC. For the same reasons, neither is the Tribunal satisfied the applicant has a real chance of suffering harm amounting to significant harm, if the applicant relocates to HCMC. For instance, and inter alia based on the findings made herein, the Tribunal is not satisfied that in HCMC, the applicant has a real chance of suffering harm that would or could constitute ‘severe pain or suffering’; or ‘pain or suffering’ which ‘could reasonably be regarded as cruel or inhuman in nature’; or an ‘act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’.
Regarding whether it was reasonable to relocate, given the ‘rapid economic development and increasing job opportunities … generating large migration flows from rural to urban’; given his work skills and his apparently modest English language skills which could presumably enhance his employability in Vietnam (particularly in areas related to tourism); given the access to medical services; and given he could access HCMC by direct flight,[24] the Tribunal is satisfied the applicant can reasonably relocate to HCMC.
[24] See ‘Skyscanner’, Cheap Flights from Sydney to Ho Chi Minh City | Tickets from $257 | Skyscanner, accessed 7 December 2021.
At hearing, the applicant also said he was a ‘northerner’ and he was not sure he could accustom himself to the ‘ways of the South Vietnamese’. The Tribunal was unable to locate material evidence as to why it may be unreasonable for the Vietnamese speaking applicant from the north, to relocate to the south of Vietnam (ie he did not appear to reside in a northern area of Vietnam from where relocation may be restricted[25]). However, and as was also stated at hearing, the applicant was able to accustom himself to Australia, a country with a language, culture and history entirely different to his own. Accordingly, the Tribunal was not satisfied it was unreasonable to relocate on this ground. Further, and as noted above, the applicant’s first language is the Vietnamese language – and this will facilitate relocation to HCMC.
[25] DFAT COUNTRY INFORMATION REPORT, VIETNAM, 13 December 2019 at [5.19].
After then considering all the findings herein, the Tribunal is satisfied the applicant can safely and reasonably relocate within Vietnam.
Accordingly, the Tribunal does not accept the applicant has a real chance of suffering significant harm in HCMC, arising from his homosexuality. The Tribunal is also satisfied it is reasonable for the applicant to relocate to an area of the country (HCMC) where there would not be a real risk that he would suffer significant harm.
Failed asylum seeker:
The country information stated:
5.28 Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.
5.29 DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
…..
5.31 DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[26]
[26] DFAT COUNTRY INFORMATION REPORT, VIETNAM, 13 December 2019.
After putting the gist of the country information to the applicant at hearing, he referred to Australia having freedom of speech and expression (though the Tribunal understood this related to the applicant’s claim to wish to live as an openly gay man – discussed above), that he was open and comfortable in Australia, and he also repeated some of his other material claims already dealt with above.
However, after then considering the accepted evidence herein, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in Vietnam, even if he returned from Australia as a failed asylum seeker.
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).
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). For the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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