1703990 (Refugee)

1703990 (Refugee) [2017] AATA 1014 (13 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703990
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Shahyar Roushan
DATE:13 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 June 2017 at 11:18am
CATCHWORDS
Refugee – Protection visa – Vietnam – Social group – Transgender persons – Societal discrimination, ridicule and verbal abuse – Fear of violence and abuse – Did not amount to persecution – Country information indicates general acceptance and support of transgender people
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background, Claims and Evidence
The applicant is a [age] national of Vietnam and identifies as male. He was born in and resided in Ho Chi Minh City. He first arrived in Australia in 2009 on a [temporary] visa. She has since travelled to Vietnam and [Country 1] on multiple occasions.
The applicant applied for the visa [in] June 2016. In his application for a protection visa, in response to questions relating to his reasons for claiming protection, he stated the following:
I fear returning to Vietnam because I am transgender (female to male). I arrived in Australia with a [temporary] visa on about [date] December 2009. I then returned to Vietnam to visit relatives between about [date] January 2012 and [date] February 2012, when I returned to Australia. I was about [age] and my appearance was more feminine, for instance, I did not have a moustache like now, my eyebrows were different and I did not have muscles. I went to [Country 1] between [date] November 2013 and [date] December 2013. That was for the purpose of hormone replacement therapy. I returned to Australia. I travelled back to [Country 1] between [date] October 2014 and [date] October 2014, again for the purpose of hormones. Between [date] November 2014 and [date] November 2014, I returned to Vietnam. I had an appointment with a "nurse" (I call her a nurse or "`assistant", but I do not think that she was a qualified nurse. She was a woman who had undergone the male to female procedure). That appointment was to get some information about surgery (specifically, having my breasts removed and changing my internal organs to have a penis). The "nurse" advised me to have an operation in [Country 1]. I did not see my family during that visit because I wanted confidentiality. I next departed Australia on about [date] January 2015. I transited through Vietnam from [date] January to [date] January 2015 (I stayed at my [relative]’s house). From [date] January 2015 until [date] January 2015, I was in [Country 1] for the purpose of getting information about surgery.
I saw the "nurse" and we talked about things like the place to stay for surgery. At that stage, my plan was to just have my breasts removed first (as I did not have I the money to change my internal organs to a penis). I returned to Vietnam from [date] January until [date] March 2013. The purpose was to attend a [relative]’s wedding. I saw my parents and [sibling] and they were surprised (for example, my voice had changed to become deeper). On that trip, border security had looked at my passport and saw that it showed that I was female and asked me lots of questions and laughed at me (that has actually happened more than once). Also on that trip, the police had stopped me for my ID. At first, they talked to me normally and thought I was male. When they looked at my ID, they asked words to the effect "Are you female". I replied, "Yes". The police started laughing at me and wanted to check whether the ID was real or fake. They thought that I was like a monster. I had a girlfriend at that time (I have had about five girlfriends in total) and people would look at us and laugh and think that I was strange and a monster. In Vietnam, some people think that being transgender is a mental problem. It's not though - it's a physical problem and not a mental problem. I was also scared to be in public because people can abuse or be violent to transgender people. I returned to Australia on about [date] March 2015. I returned to Vietnam next from about [date] April 2015 until about [date] May 2015. I originally intended to pick up my [relative] and then go to [Country 1] for breast removal surgery after one day (my [relative] was going to support me). Then one day after that, I was going to have the surgery, spend three days recovering in [Country 1] and then spend ten days in Vietnam with my [relative] (and get further care such as antiseptics and stitches removed). I had booked the tickets for that plan. However, the "nurse" contacted me at the beginning and advised that my operation would need to be cancelled and delayed. I just spent my time instead in Vietnam at my [relative]’s house. I was too scared to leave the house after my previous experience in Vietnam. When I returned to Australia, I thought that I could continue to study and have the operation later, but I was arrested and then went to jail in about December 2015.
The applicant also stated that he fears facing violence and abuse. In Vietnam, he would be unable to have the required exchange operations. He would be identified as a female in his ID document and people would laugh at him. People in Vietnam look at him as though he is a ‘monster’ and that he has a mental illness. He would be unable to find work. His friend, who is also a female to male transgender, wanted to work as a [occupation], but he had to wear female clothes. He would be unable to get married or live with a woman. There is no marriage for transgender people and de facto relationships are not recognised. He wants to live openly as a female to male transgender person. He would be unable to live openly in Vietnam. He will not receive protection from the authorities.
In support of the application, the applicant’s representative submitted a detailed submission, dated [in] July 2016, in relation to the applicable legal principles and the relevant country information. The submission offered a critique of the Australian Department of Foreign Affairs and Trade’s (DFAT) August 2015 Country Information Report in relation to Vietnam and referred to other sources, including the 2014 report by UNDP, USAID (Being LGBT in Asia: Vietnam); a February 2016 paper by Tu-Anh Hoang and Pauline Oosterhoff (Hoang et al, Transgender at Work: Livelihoods for Transgender People in Vietnam, Evidence Report No 167, Sexuality, Poverty and Law); a July 2015 report by Save the Children (Being LGBT Young People in Vietnam: Life on the Streets and the Light through the Crack, A Summary of Research Findings); a 2012 paper by Phạm Quyn Phuong, Le Quang Binh and Mai Thanh Tu (Phuong et al, Aspiration to be myself: Transgender people in Vietnam: realities and legal); a January/February 2014 submission by the Institute for Studies of Society, Economy and Environment for the Eighteenth Session of the United Nations Universal Periodic Review for Vietnam (Situations of Lesbian, Gay, Bisexual and Transgender (LGBT) People in Vietnam); a 2014 paper by Nguyen Le Hoai Anh (Risks and Challenges to Transgender People in Vietnam and Suggestions on Social Work Supportive Measures); and a June 2015 Shadow Report for the 61st Session of the Committee on the Elimination of Discrimination against Women by the Kaleidoscope Human Rights Foundation (The Rights of Lesbian, Bisexual, Transgender and Intersex (LBTI) Women in Viet Nam).
The applicant was interviewed by a delegate of the Minister in [date] July 2016. Where relevant his evidence at the interview is referred to below.
The delegate refused to grant the visa [in] March 2017 and the applicant applied for a review of the delegate’s decision.
Application for Review
In support of the application for review, the applicant’s representative provided a submission dated [in] April 2017, addressing the arguments relied on by the delegate to refuse the application. The submission also referred to and quoted from a March 2017 Agence France Presse (Transgender Vietnamese turn to black market hormones)’.
The applicant appeared before the Tribunal on 13 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
The Tribunal received a further submission from the applicant’s representative, dated [in] April 2017, addressing some specific issues raised by the Tribunal at the hearing. These matters are discussed further below.
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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
The Tribunal accepts that the applicant is a female to male transgender. The Tribunal also accepts that the applicant is apprehensive of returning to Vietnam after living for a number of years in Australia. For the following reasons, however, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts that the applicant was subjected to discrimination at school, as he was expected to go to school wearing a female uniform against his wishes. The Tribunal accepts that he was subjected to criticism and ridicule. The Tribunal also accepts that, as an adult, he has, on a handful of occasions, experienced ridicule and verbal abuse in the past at the hands of the police, border security and members of the public due to societal attitudes, including attribution of mental illness to transgender people. The Tribunal accepts that people thought he was ‘strange’ because he had a girlfriend and that the family of one of his girlfriends did not accept him because he was not ‘a traditional person’. The Tribunal further accepts that he had felt upset and stressed by his experiences. The country information before the Tribunal, including information submitted by the applicant’s representative, indicates that this type of discrimination against transgender people does occur in Vietnam.
In its 2015 report, the US Department of State reported:
In 2013 the Institute for Studies of Society, Economics, and Environment, a nonprofit organization working for the rights of minority groups, reported approximately 1.65 million individuals in the country identified as lesbian, gay, bisexual, transgender, or intersex persons.[1]
[1] US DoS, Country Reports on Human Rights Practices for 2015 – Vietnam,
In its latest country report in relation to Vietnam, the US Department of State stated:
Societal discrimination and stigma continued to decrease but remained common, and local media reported general harassment of transgender individuals, including those in custody… In August nearly 1,000 individuals participated in Pride Walk for Viet Pride in Ho Chi Minh City, and there were Viet Pride celebrations held in 22 cities and provinces, including a bike rally with hundreds of riders in Hanoi.[2]
[2] US DoS, Country Reports on Human Rights Practices for 2016 – Vietnam,
In its August 2015 report, DFAT stated:
3.49 Same-sex sexual activity is legal in Vietnam provided it complies with other legislation also applicable to heterosexual activity (e.g. non-commercial acts between consenting adults in private). A new Law on Marriage and Family which came into effect on 1 January 2015 removed a ban on same sex marriage. However, under the new law the government does not formally recognise same sex marriages, meaning that same sex couples are not afforded the legal protections that heterosexual married couples enjoy. Transgender people also lack legal recognition, including rights to change their name and gender on official documents.
3.50 In practice, there has been a growing acceptance of the rights of lesbian, gay, bisexual, transgender/transsexual and intersex (LGBTI) people in Vietnam, in what remains a largely traditional country. In 2012, Vietnam’s first gay pride rally took place, attended by around 100 people. It has since become an annual event, with several hundred people taking part in the third Viet Pride celebration in Hanoi in August 2014.
3.51 DFAT assesses that the risk of official discrimination against LGBTI people in Vietnam is low. An LGBT rights advocate was the only civil society representative permitted to leave Vietnam to attend its UPR session in February 2014.
3.52 While specific examples of societal discrimination are difficult to uncover, DFAT assesses that the risk of societal discrimination against LGBTI people in Vietnam is moderate, particularly outside the major cities, where ongoing traditional values make social and family acceptance of LGBTI people uncertain.[3]
[3] DFAT, County Report – Vietnam, 31 August 2015.
The Tribunal accepts that transgender people are at risk of being exposed to taunts, ridicule and verbal abuse from time to time. The Tribunal appreciates that regular and petty acts of discrimination, such as name-calling and abusive language, are unpleasant, distressing and undesirable. However, whilst persecution involves discrimination that results in harm to an individual, not all discrimination will amount to persecution (see Haji Ibrahim (2000) 204 CLR 1 at 18-19, per McHugh J).
Without wishing to understate the unpleasant nature of the applicant's experiences, the Tribunal is not satisfied, based on the evidence before it, that the discrimination the applicant was subjected to in the past amounts to serious harm. Nor is the Tribunal satisfied that this discrimination amounted to significant harm.
In Vietnam, the applicant resided in Ho Chi Minh City with his family, with whom he continues to enjoy a good relationship. DFAT’s report suggests that, whilst the risk of societal discrimination against LGBTI people is moderate, particularly outside major cities, there has been a growing acceptance of the rights LGBTI people in Vietnam. The Tribunal also notes the applicant’s evidence that the ridicule he was subjected to by the border security and the police was, at least partly, due to being identified as female in his official ID documents. As already noted, the revised Civil Code, which allows transgender people to legally change their registered gender on official documentations, may result in a reduced risk of the applicant facing similar treatment if he were to undergo gender reassignment surgery.
The applicant stated at the hearing that there are no transgender organisations in Vietnam and no one to help him. In his submission of 20 July 2016, the applicant’s representative referred to an extract from the 2014 UNDP, USAID report, which stated:
There are limited resources dedicated to the specific needs of the transgender community, especially for female- to-male transgender persons. Unlike gays and lesbians, it has been difficult for transgender people to establish a separate and independent community.
This paragraph, however, is a fragment of a longer paragraph and the segment quoted is immediately followed by:
The emergence of cyberspace has opened doors to many transgender individuals, especially young people, to make friends and share information about gender identity. Transgender persons have participated in major gay and lesbian websites including vuontinhnhan, taoxanh, and bangaivn.
While the Tribunal appreciates that the applicant may experience some discrimination and stigma in Vietnam at the same level he has in the past, the Tribunal is not satisfied that he faces any real chance of discrimination amounting to serious harm now or in the reasonably foreseeable future. The Tribunal is not satisfied that the discrimination the applicant may face amounts to a real risk of harm of the scope or gravity envisaged in the definitions of torture and cruel, inhuman or degrading treatment or punishment.
The applicant has claimed that his experiences in Vietnam made him stressed and depressed. The applicant’s representative’s submission [in] April 2017, referred to the 2012 paper by Phuong et al, which noted that, because of social stigma, transgender people are ‘often severely affected by mental disorders’. It further stated that transgender people ‘suffer lack of opportunity, harassment and violence from every aspect of society’. The same paper also states that that ‘many transgender prove to be resilient. Far from being passive, pitiful victims, they are able to exert a high degree of agency in asserting their own sense of gender identity. Many transgender people try hard to lead an independent life and to prove their ability despite the continuing stigma’.

The Tribunal accepts that LGBT people experience stigma and discrimination at the workplace, particularly transgender people as ‘their gender identity and expression are often more physically visible’. In his application for a protection visa the applicant stated that he would be unable to find work and used the example of a female to male transgender friend, who wanted to work as a [occupation] but he had to wear female clothes.
The information before the Tribunal, including the information submitted by the applicant’s representative indicates that that ‘for transgender people in general, employment is a major challenge’. In his submission of 6 April 2017, the applicant’s representative quoted the following passage from the 2014 UNDP, USAID report, which stated:
Thus, LGBT employees are often isolated at work and unable to be honest and open about their personal lives for fear of losing their jobs. The psychological pressure of keeping their sexual orientation and gender identity hidden and concern over their personal safety detracts from their work performance. Some of those who are brave enough to be open in the work place are victimized by violence and discriminatory practices and eventually have to quit their jobs.
The above extract, however, omitted the introductory sentence, being: ‘Conservative employers still view LGBT people negatively, often stereotyping and characterizing LGBT employees in a similar way as the government does, as a social evil’ (emphasis added). The preceding paragraph in the same report also states that transgender people ‘have difficulty finding a job that meets their expectation and competency’.
However, whilst noting that some female to male (FTM) transgender people face certain difficulties, including being asked to wear female clothing when they apply to hotels, Phuong et al stated in their paper that these difficulties are not as serious as compared to the male to female (MTF) group. They noted:
Many FTMs told us the easiest jobs to find are in the hospitality and tourism sectors, cooking or bartending. For FTMs, it is not too difficult to find jobs because people only think that they like to wear tomboy, masculine clothes.
The applicant’s representative’s submission [in] April 2017 referred to the paper by Hoang et al, which stated that in their online survey 26.5% of ‘transmen’ had had to leave their job at least once because of being transgender; 6.8% had been sexually harassed and 46.7% did not feel comfortable with sex specific restrooms in the company. The same report, however, noted that among the 177 transgender people who answered the ‘livelihood questions’ in their survey, 70% had full time jobs, part-time jobs or ran their own business. They took part in a wide range of job options and more than 20% of the employed transgender people were in managerial positions. They also made the following observation:
The survey also showed that both transmen and transwomen received support from their employers and their co-workers even when it was known that they were transgender. However, when working in public places and having contact with clients they did not feel as well received…
Hoang et al concluded:
Transgender people face restricted livelihood opportunities but they are also able to use the new economic opportunities generated by the internet and the opening up of the Vietnamese economy. While several studies have emphasised the discrimination against transgender people that prevents them from accessing employment opportunities and promotion, we found that some transgender people have found ways to circumvent this. We found successful young managers as well as many entrepreneurs who are working in internetbased, creative and non-sex based hospitality professions. This study clearly had an online bias, but the results do suggest that there are many livelihood possibilities for transgender people that seem to be unimaginable for the people in the offline community…
Self-discrimination on what transgender people can or cannot and should or should not do is also another important factor that may limit transgender people from learning and trying in areas that are not considered suitable work for transgender people…
When given an opportunity, even in a not totally fair environment, transgender people can prove their capacity and can climb to leading positions. But many people are not aware of such positive experiences, even in the transgender community. This limits people’s views on livelihood opportunities and deprives them of a sense of empowerment.
At the hearing, the applicant stated that transgender people can obtain employment, but they cannot obtain their ‘dream job’. As a female to male transgender, he will be discriminated against by his co-workers. He may also be subjected to sexual abuse and violence by co-workers. He stated that incidents of sexual abuse are generally on the rise in Vietnam. Whilst ordinary people can report these incidents to the authorities, transgender people are ignored and not afforded protection. Although he has qualifications, he will be pushed into a low standard of living in Vietnam.
The applicant has completed a [course] and he is currently studying towards a [higher qualification] at [an institute]. He has also completed [other] courses and has worked as [occupations] in Australia. The applicant’s evidence to the Tribunal further indicated that throughout his stay in Australia he has been financially supported by his [relative], who owns a factory in Ho Chi Minh City. The Tribunal appreciates that the applicant may not be able to find employment in his dream job. However, having regard to the information referred to above and the applicant’s own circumstances, the Tribunal is not satisfied that he faces a real chance of serious harm, including significant economic hardship that threatens his capacity to subsist or a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. The Tribunal is not satisfied that he faces a real risk of significant harm arising from economic hardship or an inability to find employment or earn a livelihood.
The applicant has claimed that, if he were to return to Vietnam, there are no hospitals that can help him change his gender and his ID documents will continue to identify him as female.
As it was noted in the delegate’s decision and put to the applicant at the hearing, there have been some changes in Vietnam’s laws. The applicant’s submission [in] July 2016 referred to a December 2015 report by Radio Free France and acknowledged that the recent changes allow hospitals in Vietnam to perform gender reassignment surgery. According to the Radio Free France news report, ‘the law allows Vietnamese who previously had to travel to neighboring Thailand or elsewhere abroad for the surgery to have the procedure done in Vietnam, and to subsequently change the gender marker on their official documents’. The submission noted that the law will come into effect early in 2017. The submission also cited a December 2015 news article sourced from Vietnam News, referring to a November 2015 meeting of the National Assembly, where deputies agreed on the right of people to undergo gender reassignment surgery and discussed ‘the required process for a gender change surgery, including the idea that people desiring to have a gender reassignment would need some time to experience life as that new gender’. It was submitted that the applicant’s identity documents referencing his gender would not be changed until after he has undergone gender reassignment surgery.
The evidence before the Tribunal, however, indicates that the there are two separate laws or draft laws that govern sex reassignment surgery and gender recognition for transgender people who have undergone sex reassignment surgery. As indicated in the news reports referred to by the applicant’s representative’s submission [in] April 2017, the Vietnamese government is currently drafting a ‘landmark law’ that could allow transgender people to legally undergo sex reassignment surgery in Vietnam. The draft laws are expected to be finalised in 2018 and submitted for approval to the National Assembly the same year.[4] The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) has also reported that Vietnam’s laws on sex change are in a draft stage.[5] The other set of laws are concerned with the recognition of gender reassignments and the right of transgender persons who have undergone gender reassignment to change their legal name and gender in their official documents. These laws, which are enshrined in the revised Civil Code 2015, were drafted by the Ministry of Justice and enacted by the National Assembly in November 2015 and came into effect in January 2017. The revised Civil Code allows transgender people to legally change their registered gender and change their names to match their change in gender.[6]
[4] Up to 5,000 Vietnamese have recently undergone sexual reassignment therapy: health official, Tuoi tre News, August 2016,
[5] International Lesbian, Gay, Bisexual, Trans and Intersex Association: Chiam, Z., Duffy, S. and González Gil, M., Trans Legal Mapping Report 2016: Recognition before the law (Geneva: ILGA, November 2016).
[6] Vietnam Recognizes Transgender Identity Rights, USAID, November 2016, Vietnamese law to recognize transgender people in 2017, VN Express, 17 December 2016, ; New laws to ring in significant changes, Viet Nam News, 28 December 2016,
The Tribunal accepts that the applicant would be unable to undergo sex reassignment surgery at this point in time in Vietnam. However, he would be able to do so in [Country 1]. As it was put to him at the hearing, in the past few years, he voluntarily travelled to [Country 1] for [certain] therapy on a number of occasions. He also travelled to [Country 1] in 2015 for the purpose of getting information about sex reassignment surgery. Whilst the option was available to him, he had decided not to seek treatment in Australia. The applicant told the Tribunal that he had not sought treatment in Australia due to his English language skills, his study and work commitment and his limited finance resources. The Tribunal finds that the applicant would be able to seek treatment and undergo surgery in [Country 1] as he had previously intended to do. The sources consulted by the Tribunal indicate that between 4,000 and 5,000 Vietnamese have undergone different methods of sexual reassignment therapy in recent years by travelling to Thailand.[7] As indicated by the country information before the Tribunal, if the applicant were to undergo gender reassignment surgery, the revised Civil Code would now permit him to change the gender marker on his official documents, which would also enable him to get married to a person of female gender, if he chose to do so at some point in the future. The Tribunal is not satisfied that the applicant’s inability to undergo sex reassignment surgery in Vietnam amounts to serious or significant harm. The Tribunal is not satisfied that, if the applicant returned to Vietnam and faced discrimination at the same level he has in the past on the basis of the present gender markers on his official documents, this treatment does not amount to serious or significant harm.
[7] Up to 5,000 Vietnamese have recently undergone sexual reassignment therapy: health official, Tuoi tre News, August 2016, >
The applicant has claimed that he fears facing violence and abuse. Nevertheless, he told the Tribunal that he was not subjected to physical violence in Vietnam. In his submission [in] July 2016, the applicant’s representative submitted that the DFAT report does not discuss serious harm to transgender persons, such as violence or sexual assaults/harassment. The submission referred to extracts from a number of reports and academic articles to present an alternative view. However, the Tribunal found these extracts to be selective, omitting qualifying parts and context. For example, the following segments from the 2014 UNDP, USAID report were extracted in the submission:
Given such circumstances, it is not surprising that transgender people disproportionately suffer from exploitation, sexual assaults, and violence.
The above paragraph appears in a section of the report under the heading ‘Twentieth Century’. The segment provides a historical outline of the evolution of LGBT rights and attitudes towards the community in the last century. More specifically the quote appears at the end of a paragraph discussing the traditional practice of recruiting of transgender people as funeral singers. The report refers to physical violence, sexual harassment and verbal abuse in educational environments, particularly school. The report also refers to ‘conservative employers [viewing] LGBT people negatively and states ‘some of those who are brave enough to be open in the work place are victimized by violence and discriminatory practices…’ Much of the report is based on discussions that took place as part of the Vietnam National LGBT Community Dialogue, organised as a part of the ‘Being LGBT in Asia’ project. According to the report, the dialogue comprised two events held in Ho Chi Minh City and Ha Noi in early June 2013, attended by 70 participants.
The submission also quoted at length from Save the Children report, touching on violence, hate crimes and daily discrimination. The report, however, relates specifically to LGBT street children. According to the report, ‘all data, empirical evidence, and findings in this report were collected and analyzed from questionnaires, interviews, and focus group discussions with LGBT street children and youth and key stakeholders in Ho Chi Minh City in 2015’.
Other material relied on by the applicant’s representative included the 2012 paper Phuong et al and the 2014 paper by Nguyen Le Hoai Anh. In their report, Phuong et al make references to violence against transgender people in Vietnam. However, these references appear to be general, without elaboration or supporting evidence. For example, Part I of the paper discusses violence against transgender people worldwide. The same Part also refers to ‘a small study by CCIHP on violence towards transgender people’. However, this report has not been referenced in the paper and it is difficult to determine the parameters of the study and its date. The same paragraph refers to bullying at school and lack of support from family which may lead transgender people to leave home and ‘live in danger (of violence, rape and robbery), poverty and livelihood difficulties’. In Part II, the paper refers to early expressions of identity amongst young transgender people, ‘which leads to correction, coercion or violence that transgender people are faced with’ within family. In this context, it is stated that male to female transgender people are often subject to violence more than female to males. In Part III, in relation to public spaces, the report states ‘due to the hatred and violence directed towards transgender people, they rarely feel safe in public places’. The paper then refers to responses by individuals who were interviewed for the purposes of the study. The responses discuss access restrictions to bars and cafes and some people, including the police, being verbally abusive and expressing disgust. One responder stated ‘now it is not so bad. If it had been a few years ago I would be beaten or slapped if I went out as a girl’. There are no references to anyone being subjected to physical violence. Later in the paper, reference is made to ‘prostitution [making male to female transgenders] victims of sexual violence’ ad ‘violence also [breaking] out at funerals when guests insist on taking the microphone to sing but are not successful, and turn to breaking things and making noise so that “open shadows” cannot perform’.
The paper by Nguyen Le Hoai Anh refers to risk of violence to transgender people by members of their family and at school. The paper also states that ‘some transgender people also reveal that they have been hit by the police or militia, since their expressions were different from the assigned sex’. No further information or details were offered in relation to the treatment of transgender people by the police. The Tribunal has found no persuasive evidence in any of the other sources before it to support this view.
At the hearing, the applicant was afforded additional time to provide further information in support of his claims, including risk of violence. However, the applicant’s representative’s submission [in] April 2017 only referred to the sources already considered and discussed.
The applicant is no longer at school, she is relatively highly educated and she enjoys a good relationship with her family. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, including physical harm, violence or significant physical harassment by members of the public or law enforcement officials or ‘militia’ in Vietnam for the reason of being a female to male transgender person. The Tribunal is not satisfied that the applicant faces a real risk of facing significant harm by members of the public or law enforcement officials or ‘militia’ in Vietnam arising from being a female to male transgender person.
Phuong et al attributed the risk of mental health problems for transgender people in Vietnam to ‘lack of opportunity, harassment and violence from every aspect of society’. The evidence cited above and the Tribunal's finding in relation to the risk of discrimination, including in relation to employment, harassment and violence, does not support the view that the applicant faces a real chance or a real risk of psychological harm in Vietnam as a female to male transgender. Following the hearing, the applicant’s representative submitted copies of clinical records relating to mental health screenings carried out in respect of the applicant. The most recent record, dated [in] March 2017, noted that the applicant’s mood was ‘normal and affect congruent’. He was ‘pleasant, cooperative and well-engaged’. With regard to his current functioning, the record observed ‘healthy coping strategies’ with a ‘low risk’ assessment. The Tribunal finds that the applicant does not face a real chance or a real risk of psychological harm in Vietnam as a female to male transgender.
Having considered the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that, if he were to return to Vietnam now or in the reasonably foreseeable future, there is a real chance that he will be subjected to serious harm for the reason of his membership of a particular social group, including transgender person in Vietnam, female to male transgenders in Vietnam, females identifying as male in Vietnam, LBGTIs in Vietnam, any subset of these groups or any other social group identified on the face of the evidence. The Tribunal is not satisfied that there is a real chance that he will be subjected to serious harm for any of the other reasons referred to in s.5J(1)(a) of the Act.
The Tribunal finds that the applicant does not have a well-founded fear of persecution in Vietnam. 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 reasons already provided, the Tribunal is not satisfied that there is a real risk that the applicant will be exposed to discrimination or violence amounting to any form of significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that the applicant faces a real risk of being significantly harmed for being female to male transgender or due to her gender, gender identity or sexual orientation.

The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.
The Tribunal is not satisfied that 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.
Shahyar Roushan
Senior 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1014

13 June 2017

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