1703990 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to refuse the applicant, a national of Vietnam, a protection visa. The applicant, who identifies as a transgender male, claimed he feared returning to Vietnam due to societal discrimination, ridicule, and potential violence and abuse stemming from his gender identity. He had previously travelled to Australia and another country for medical treatment related to his transition.

The primary legal issue before the court was whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically transgender persons, as contemplated by section 5J of the Migration Act 1958. This required determining if the fear of persecution was real, if it related to all areas of Vietnam, and if the harm apprehended amounted to persecution under the Act, considering whether effective protection measures were available.

The court accepted that the applicant was a transgender male and that he experienced discrimination, ridicule, and verbal abuse in Vietnam from individuals including police and border security, as well as from members of the public. It also accepted that he felt upset and stressed by these experiences. However, the court had regard to country information, including reports from the US Department of State and the Department of Foreign Affairs and Trade, which indicated a growing acceptance of LGBTI rights in Vietnam, with events like Pride Walks occurring in major cities. While acknowledging that societal discrimination against transgender people did occur, the court found that the applicant's experiences, on balance, did not amount to persecution. The country information suggested that while discrimination existed, it was not at a level that would constitute persecution, and that official discrimination was assessed as low.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria for a well-founded fear of persecution.