1711974 (Refugee)

1711974 (Refugee) [2020] AATA 2056 (5 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711974
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Joseph Lindsay
DATE:5 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 May 2020 at 6:25pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – LGBTI females – forced marriage – employment – concealing true sexual orientation – fear of family violence – return visit to Vietnam – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423
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 on 17 May 2017 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 2 June 2016 and the delegate refused to grant the visa on 17 May 2017.
The applicant appeared before the Tribunal on 3 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing by phone.
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) of the Act. 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) of the Act, 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 of the Act, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s claims
The applicant’s claims are, in summary, that she identifies as being LGBTI. She claimed she feared returning to Vietnam because she thinks her parents will not accept her and that they may harm her. In addition, the applicant expressed concern that if she returned the Vietnam she would not be able to find work due to her sexuality and she will not be able to support herself. She claimed that if she returned the Vietnam she will be subjected to homophobia and she will not be protected by the Vietnamese laws as a homosexual person.
Hearing on 3 September 2019
At the hearing on 3 September 2019, the applicant gave the following information. The Tribunal noted that the applicant’s representative had provided a further statutory declaration statement from the applicant dated 26 August 2019.
The Tribunal considered the applicant’s submissions that she had provided just prior to the hearing. The Tribunal noted the letter dated 25 August 2019, as well as the country information that was provided. The Tribunal noted that the applicant had provided a number of statutory declarations from people who had not attended the hearing and who the applicant had not previously indicated that she wanted the Tribunal to speak to as witnesses.
The Tribunal asked the applicant why none of the people who had provided statutory delectations had presented themselves to the Tribunal for the hearing and she said they had to work. She indicated that she did not know that she could have invited these people to the hearing, but subsequently admitted that she had an appointed representative from whom she had received advice to not invite the people to the hearing.
The Tribunal discussed the information in the statutory declaration dated 19 August 2019 and the applicant agreed that the information was correct.
The applicant indicated that all of her protection claims that she had previously put to the delegate were exactly the same.
The Tribunal asked the applicant if there was any change to the previous information, and the applicant indicated that there had been two changes. She said her relationship with her ex-partner, [Ms A], had ended and, secondly, she had a trip to Vietnam in 2018.
The Tribunal asked the applicant to speak about her relationship with her ex-partner. In response the applicant indicated that since [Ms A] moved out of the house in April 2019 she has not had any contact with her. She said her relationship with [Ms A] commenced [in] October 2015, and they had known each other in 2014 in Hanoi, Vietnam.
The applicant indicated she still lived in her same address, but it was [Ms A] who had moved out.
The Tribunal asked the applicant why [Ms A] moved out in April 2019. In response the applicant said that one day she came home from work late and [Ms A] informed her that she was pregnant. The applicant said she was shocked. The applicant said she didn’t talk to [Ms A] for a week, and during that time she thought over and over about the relationship. The applicant said she let [Ms A] move out of the house one week later. She said she had to go to an office, where they had previously registered the relationship ([in] March 2017), to end the relationship.
The applicant said that she first came to Australia [in] March 2015.
The Tribunal put to the applicant that she had indicated that she had been in a relationship with [Ms A] for the best part of four years. Whilst the applicant was able to provide some photos of her and [Ms A] together, she indicated that she was not able to provide much documentation, other than the relationship certificate, about her life with [Ms A] for four years. She indicated she had closed her joint account with [Ms A] but she was not able to provide those records to the Tribunal. When asked what evidence she provided when she applied for the relationship certificate in 2017, she indicated that she provided a copy of a joint account statement and her passport but she could not remember anything else.
In regard to the photos, the Tribunal noted that the photos did not indicate exactly who the other person in the photo was or when the photos were taken. The Tribunal noted that the applicant suggested the other person in the photos was [Ms A], because she said so.
The Tribunal asked the applicant why she took so long to apply for protection after she first came to Australia. In response she said she did not know she could apply for a protection visa. One of her friends told her she could apply for protection and then she did her own research and found out she could apply for protection because of her situation.
The applicant indicated that both she and [Ms A] went to [Representative A] to be their appointed migration agent to assist them to apply for protection. The applicant’s representative indicated that he had received files from [Representative A] and was not sure if [Ms A] was his client. The applicant indicated that they both moved to the same new representative ([Representative B]). [Representative B] subsequently indicated that he was [Ms A’s] appointed migration agent but he did not have instructions from [Ms A].
The Tribunal referred to the USB memory stick that the applicant wanted the Tribunal to view, including two video clips – including one video of a woman who was physically abused by her husband while she was holding their baby and the other video clip was about the same case. The applicant explained that the videos were relevant to her case because she wanted to show that women in Vietnam might be in danger due to domestic violence. The applicant indicated that, because she was a woman too, she could be subjected to domestic violence if she returned to Vietnam. The applicant indicated that neither of the two videos were directly about her. The Tribunal indicated that it would accept that domestic violence occurred in Vietnam and did not need to watch the videos to know that.
The applicant then indicated that she studied when she got to Australia but then stopped studying because she applied for a protection visa, and during that time she and [Ms A] lived together. She said that they did not have enough financial resources to continue studying. She said her parents did not know that she had applied for a protection visa. She indicated her student visa expired in 2019, and she had applied to seek review of the decision to refuse her a student visa. She said she wanted a student visa as well as a protection visa, and she knew these were different visas. She said that she had been studying, she had study rights on her bridging visa, she had just finished a [specified course] and wanted to study [another course].
The Tribunal asked the applicant if she was in a new relationship, and the applicant indicated that she was not currently in a relationship. The applicant indicated she just had a friend at the moment.
The Tribunal referred to the applicant’s statutory declaration where she indicated she did return to Vietnam in 2018 to visit her seriously ill grandmother. The Tribunal asked the applicant if she understood that when she applied for protection in 2016 she indicated she had applied for protection because she had a fear of going back to Vietnam because she would be at real chance of serious harm or real risk of significant harm – yet she went back. The Tribunal put to the applicant that her action in returning to Vietnam may indicate to the Tribunal that she did not have a genuine fear of harm in returning to Vietnam – because she did return to Vietnam. In response the applicant indicated that she understood that she was not allowed to go to Vietnam but that at that time her grandmother was very sick and her parents did not know that she had applied for a protection visa, so when her parents told her to come home (to Vietnam) she felt that she had no choice but to go to Vietnam. The Tribunal put to the applicant that there was nothing saying she was not allowed to go to Vietnam, but rather she had claimed she could not return to Vietnam on the basis of her fear of harm – yet she went. In response she said her parents at that time did not know that she was a lesbian and she said her parents still did not know that she was a lesbian.
The Tribunal put to the applicant that, at the age of [age] years, she was an adult and she did not have to live with her parents. In response, she agreed that she did not have to live with her parents but that they were the ones who give her supplies and money for her to attend school in Australia and to stay in Australia. The Tribunal clarified that, if she went back to Vietnam in the foreseeable future, the applicant did not have to live with her parents. She said that if she went back to Vietnam she would have to stay with her parents because she did not have any means to rent her own house or to support herself. The Tribunal put to the applicant that she had indicated to the Tribunal she had been working in a [business] in Australia, and that she said she had just finished a [specified course], so she had some educational qualifications with which to return to Vietnam. The Tribunal put to the applicant that with those skills and qualifications she would reasonably be able to find employment should she return to Vietnam in the foreseeable future. In response the applicant said with the current situation in Vietnam a certificate is not good enough to apply for any jobs. She said that [those type of businesses] in Vietnam rarely employ people to work for them. She said that where she lived in Vietnam was close to the coast and so not many people would [use those services]. The Tribunal referred to country information that noted that the Vietnamese economy had been growing strongly. In response the applicant indicated that, as far as she was concerned that even if Vietnam’s GDP grew, she would not be able to find a job because most of the business was done by individuals in a family business who did not employ people outside of the family.
The Tribunal put to the applicant further country information about Vietnam. The Tribunal played a video of “The Bachelor – Vietnam” from 2018 showing a female contestant indicating to the male “Bachelor” that she did not want to be with him but rather she wanted to be with another female contestant instead. The Tribunal noted that this footage of “The Bachelor” had been broadcast all throughout Vietnam at the time and had been widely reported around the world.
The Tribunal also referred to an article dated 3 April 2019 from Cosmopolitan magazine entitled “The Bachelor contestants who ran off together and became a couple - And they're still together!”[1] that stated:
If you haven't watched The Bachelor before, then you're truly missing out. The show, which has been a mega hit in the US came back to the UK a few months ago, and it left us all shook. Do you love high-emotion drama, bust ups, mind games and some rather unusual people trying to impress a man with their circus skills? Get it on catch up immediately.
As wild as the UK series was, it's got nothing on last year's The Bachelor Vietnam - which saw the most incredible rose ceremony moment (where the bachelor gives roses to the women he wants to stay in the competition) ever, when one female contestant stopped proceedings to ask another contestant to leave the competition with her. Naturally, this went viral back in October 2018 when the episode was first aired. But here's what happened ICYMI.
"I went into this competition to find love. But I've found that love for myself. But it isn't you. It's someone else," Minh Thư told the bachelor mid-ceremony. She then walked over to the other contestants and up to Trúc Như, who held her against her chest as she cried.
Minh Thư said, "Come home with me?" in what has got to be the most emotional moment in The Bachelor history. Trúc Như left the show two episodes later, and the couple has been dating ever since.
Their story has recently gone viral again, after someone shared Instagram pics of them celebrating at Hanoi Pride late last year.
And they're still very much together now.
One queer producer on the show told Vulture at the time: "It’s such a brave, courageous thing, that these two women made this powerful gesture. In Vietnamese pop culture, there’s a lot of people that are rumoured to be LGBT or people that hint at it. Everyone knows it, but it’s never been distinctly said. So to see a moment that’s unequivocal, where someone is saying that they love someone else … I think it’s going to be very powerful for young people."
[1] Cosmopolitan, 3 April 2019, The Bachelor contestants who ran off together and became a couple - And they're still together!, accessed 2 September 2019
The Tribunal referred to an article in the New York Times dated 25 September 2018 entitled “Gay Courtship on Vietnam’s ‘The Bachelor’ Turned Heads Abroad. Back Home? Meh”[2] that stated:
[2] New York Times, 25 September 2018, Gay Courtship on Vietnam’s ‘The Bachelor’ Turned Heads Abroad. Back Home? Meh., accessed 2 September 2019.
The contestant approached the man she had been publicly courting on live television, and confessed that the object of her affections had shifted.
“It’s someone else,” she said, then walked off the set with a fellow female contestant.
That plot twist, revealed in a trailer for the Vietnamese-language adaptation of “The Bachelor,” has set the internet ablaze. No two contestants on the show, which debuted in the United States in 2002 and later expanded overseas, have ever walked out of its elimination ceremony together.
But in Vietnam, where the full episode was scheduled to air Tuesday night, the response has been muted, and news media coverage focused primarily on how the episode has been covered abroad.
One apparent reason: Acceptance of gay and lesbian relationships has become so commonplace in the country that they are no longer all that surprising.
“Ten years ago that wasn’t normal, but now it is, at least in the cities,” Xuan Hong, a homemaker in the capital, Hanoi, said by telephone. “Perceptions change.”
Vietnam is seen as a leader on gay rights in Southeast Asia, a region where social conservatism is common and some governments still enforce draconian laws that criminalize gay sex.
Its liberal reputation on the issue dates to about 2012, when the government first said it would consider allowing same-sex couples to marry or legally register. “I think, as far as human rights are concerned, it’s time for us to look at the reality,” the justice minister at the time, Ha Hung Cuong, was quoted as saying.
Two years later, the longstanding Law on Marriage and Family was revised to abolish a prohibition on same-sex marriages, although it did not fully legalize them, either. And in 2015, the Civil Code was changed to allow people who have undergone gender reassignment to register under their new gender. A rule making that change a legal reality is now being drafted.
“Vietnam is not behind other countries on this issue,” said Ngo Duc Thinh, an expert on len dong, a Vietnamese shamanic dance tradition that has traditionally featured many gay performers. “L.G.B.T. people have the right to be happy — that’s a human right.”
Luong Minh Ngoc, the director of iSEE, a Vietnamese research outfit that advocates human rights, said that while legislative progress has been slow and the government often prioritizes other issues, she has found officials in the Justice Department and Health Ministry who are genuinely interested in improving laws that affect the gay community.
“We think the support is there,” she said, adding that gay rights issues are generally viewed in Vietnam within a moral context, rather than a political one.
That is notable because Vietnam is an authoritarian state, where hundreds of political dissidents have been jailed in recent years and the ruling Communist Party does not allow nonprofits or the news media to operate independently.
Michael DiGregorio, the Vietnam country representative for the Asia Foundation, said that gay rights issues were an “easy win” for the government, and a natural fit for international donors who saw them as an important civil rights issue in the country.
But Mr. DiGregorio said recent changes to legislation on gender, marriage and families had only been possible because they reflected a “live and let live” attitude toward gay rights that is widespread among many Vietnamese. He attributed the tolerance partly to local religious and spiritual practices that focus on ancestor worship — not a powerful God who decides what is right or wrong — and also to a Communist ideology that has never tackled what he called the “religious mantles of morality.”
Mr. DiGregorio said one example of that tolerance was the warm reception that the Vietnamese public gave to Ted Osius, the last United States ambassador to Vietnam, who frequently appeared in public with his spouse, Clayton Bond, and their two children. “I knew that this would not be regarded as something strange or unusual, and Ted was immediately accepted,” he said.
In the trailer for the Vietnamese edition of “The Bachelor,” the contestant Minh Thu walks offstage with her female castmate Truc Nhu after telling the show’s eligible single man, Nguyen Quoc Trung, that she wasn’t interested in him. But after the two women spoke together offscreen, Ms. Nhu said that she would return to the show after all.
Stories about the episode — “International Press Surprised to See Two Lesbians on The Bachelor,” one headline read — were not playing prominently on domestic news sites on Tuesday. Ms. Ngoc of iSEE said the authorities might be clamping down on entertainment coverage ahead of a planned funeral for former President Tran Dai Quang, who died last week.
Another reason could be indifference.
Gay rights issues are “a matter of morality,” Nguyen Thi Loan, a former professional volleyball player who won the 2017 Miss Universe Vietnam pageant, said by telephone. “Vietnamese people care more about material things that directly affect their lives.”
As of late Tuesday afternoon, the episode had not attracted much heated debate on Facebook, where tens of millions of Vietnamese communicate daily.
One Facebook user, Bui Quang Minh, wrote that he had been disappointed to see that the couple’s love — however short-lived — had been hidden in the first place.
“The best way to deal with your sexual orientation is to be open about it,” he said.

The Tribunal also referred to the article from SBS in Australia about the Australian reporting of the event dated 5 April 2019 entitled “A very wholesome update on the Vietnamese couple who left 'The Bachelor' together”[3] that stated:
[3] SBS, 5 April 2019, A very wholesome update on the Vietnamese couple who left 'The Bachelor' together, accessed 2 September 2019.
Six months on, the couple are still together and enjoying their time travelling the world.
It's time for an update from our favourite reality TV couple, Minh Thu and Truc Nhu from The Bachelor Vietnam.
The pair made headlines around the world last year when, during a rose ceremony, eliminated contestant Thu asked fellow contestant Nhu to leave the show to be with her.
“I went into this competition to find love,” Thu told the Bachelor.
“I’ve found that love for myself. But it isn’t you. It’s someone else.”
Six months on, the couple are still together and enjoying their time travelling the world, appearing at local Pride festivals, and sharing their journey on social media - using super sweet captions including “Can we grow old together?”
On Valentine's Day, the lovebirds exchanged flowers and gifts, writing: “Spend all your time, effort and love preserving what is yours.”
I mean, just look at them:
[several Instagram photos]
Upon going public with their love following The Bachelor, the couple were celebrated by members of the LGBTIQ+ community in Vietnam, where same-sex weddings were legalised in 2015, despite not being officially recognised by the government.
The Tribunal referred to the DFAT Country Information Report for Vietnam dated 21 June 2017, where it was stated:
Sexual Orientation and Gender Identity
3.37 The law does not address discrimination based on sexual orientation or gender identity. Same-sex sexual activity is legal in Vietnam provided it complies with other legislation also applicable to heterosexual activity, consensual between adults. The revised 2014 Law on Marriage and Family (effective 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.
3.38 The revised Civil Code, passed by the National Assembly in November 2015, allows transgender individuals the right to change their sex, access health care, and change their gender identity on official documents if they have undergone sex re-assignment surgery. Article 36: Redefine sex, applies to intersex individuals; Article 37: Sex change, applies to individuals who want to change their sex assigned at birth. The prerequisite of sex reassignment surgery in order to access the rights has been criticised by some international NGOs; however overall the revisions are seen as a small but significant step towards recognition and acceptance.
3.39 There has been a growing official acceptance of the rights of lesbian, gay, bisexual, transgender/transsexual and intersex (LGBTI) people Vietnam. Vietnam’s first gay pride rally, Viet Pride, took place in 2012. It has since become an annual event each August; celebrated in 30 provinces in 2016, with the largest turnout in Hanoi. However, societal discrimination remains high, especially within families. Unlike other South-East Asian countries, Vietnam does not have a ‘gay scene’ in major cities, with only one known gay club in Hanoi, almost solely frequented by gay men. Young LGBTI persons frequently connect through online social platforms, such as Facebook groups and blogs.
3.40 DFAT assesses that the risk of official discrimination against LGBTI people in Vietnam is low. Although Vietnam’s legislative framework is relatively progressive, there is little awareness and understanding of alternate sexual orientations and gender identities. DFAT assesses that the risk of societal discrimination against LGBTI people in Vietnam is moderate, given the traditional and patriarchal attitudes amongst Vietnamese families and society. DFAT has been advised by credible in-country contacts of cases involving parents seeking medical treatment for their child’s homosexuality, in the form of psychiatry and prescription drugs.
The Tribunal put to the applicant that the country information indicated that there has been more acceptance of LGBTI people in Vietnam than ever before, and that the chances of serious harm or significant harm happening to the applicant if she returned to Vietnam were not particularly high. In response the applicant said that she thought that was what the Communist Party in Vietnam wanted to let the world know. She said that the Communist Party in Vietnam wanted to let the world know that same sex marriage is legalised.
The Tribunal explained to the applicant that the information it referred to was not from the Communist Party in Vietnam, and that the reporting was from media outside Vietnam.
In response the applicant repeated that this was what the Communist Party in Vietnam wanted the world to know. She indicated that the purpose (of the Communist Party in Vietnam) was for Vietnam to attain economic growth. She indicated that the Communist Party in Vietnam took these steps (acceptance of LGBTI people) in order to prove that Vietnam is working side by side with the world, but in her case she did not feel safe when she returned to Vietnam as she was a lesbian. She said when she went back to Vietnam she had to stay with her family and that there was a danger from her father rather than anyone else because where she stayed was not the same as big cities like Saigon or Hanoi. She said that her father was a violent man.
The Tribunal put to the applicant that it wanted to discuss the new claims she had in respect to her father, as she had indicated in her statutory declaration dated 26 August 2019, where she stated:
8.Returning to Vietnam is only made possible by virtue of the fact that I must continue to conceal my true sexual orientation. Revelation of my true sexual orientation would subject me to serious physical harm at the hands of my father, other close relatives as well as other hostile individuals who object to homosexuality.
9.My parents and all my close relatives are very conservative in their views. They do not tolerate homosexuality. I fear that my father, would harm me if he were to find out that I am a homosexual. My true sexual orientation would be regarded as bringing shame upon my parents and the entire family.
10.I was subjected to a very stern and conservative upbringing, where I am expected to complete my tertiary education and return to Vietnam where I would marry and start my own family. Homosexuality is not something that my parents could ever contemplate or accept.
11.My father has a tendency of violence and in the past, he has at various times been violent toward myself as well as my mother. My father has a criminal record and has served a two-year jail sentence after having been found [guilty].
12.My father also has a longstanding alcohol addiction, the effects of which often manifest in violent fits of rage. For this reason, both my mother and I continue to fear my father.
13.I am of the firm view that if my father were to discover that I am a homosexual he would not hesitate to cause me serious harm.
14.Given my father's unyielding and violent temperament I never contemplated ever coming out in Vietnam. For this reason, I have had in the past and will be forced in the foreseeable future to continue to conceal my true sexual orientation.
The applicant said if she went back to Vietnam and she couldn’t stay with her family, she would have to stay in big cities like Hanoi or Saigon. The Tribunal asked the applicant if she had lived in a big city in Vietnam before and in response she said “yes I have with my family in Saigon when I was still going to primary school.” She said there was another time after she graduated from high school when she went to Hanoi to study for 3 to 6 months to prepare to go overseas to study. She said that wherever she went in Vietnam her father could track her down, and if he found out she was a lesbian he would harm her.
The Tribunal asked the applicant why she though the police would not protect her from her father. In response she said she knew the law in Vietnam now allowed for same sex marriage but she said the law did not protect same sex married people.
The Tribunal referred to the DFAT Country Information Report for Vietnam dated 21 June 2017, where it was stated:
Police
5.4 Internal security is the responsibility of the Ministry of Public Security, although the military maintains public order in the event of civil unrest in some remote areas. Police organisations exist at the national, provincial, district and local levels, and are subject to the authority of people’s committees at each level. The police are generally effective at maintaining public order. The Ministry controls the police, a special national security investigative agency, immigration and other internal security units. Credible sources report that local police also use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and others, including religious worshippers, who are perceived as undesirable or a threat to public security.
5.5 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice police organisations operate with significant discretion and little transparency. The Vietnamese law enforcement agencies are highly efficient in controlling public disturbances and communal violence. However, other police capabilities, including many investigative capabilities, remain limited and training and resources are inadequate to meet current and emerging transnational crime issues facing Vietnam and the broader region.
The Tribunal put to the applicant that there was not a lot of information about the police in the DFAT report, but that the information did not indicate that the applicant would not get assistance from the Vietnamese Police if she sought that assistance for her circumstances (i.e. any potential threat from her father).
In response the applicant said that’s what the people from outside Vietnam can read, but her homeland is a very small place. She said that everything can be solved by using money. She said if she was harmed by her father the police would not intervene. She said she lived in Vietnam for [number of] years and knows this very well. She explained that the Vietnamese police were corrupt and could be bribed. The Tribunal noted that the DFAT report did refer to issues of corruption in Vietnam.
The applicant then said that it was her father that was the main threat to her and that was what she wanted to talk about. The Tribunal put to the applicant that one moment she was indicating that her father was the one who supported her including financially, and that she had indicated she had previously gone back to Vietnam to see her family, even though she claimed to fear being seriously harmed or even killed by that same member of her family (her father) - to which she said “yes.” She said it was her father that would not accept his daughter falling in love with another girl, and she already saw when she spoke to her mother over video link that her younger brother likes to play with colour pens and pencils but when her brother played with the nail polish her father scolded her younger brother badly.
The Tribunal asked the applicant to explain what she had said in the statutory declaration about her father. The applicant confirmed that her father had a criminal record. She said her mother told her about it, and it happened when she was very young. She said her mother and herself went to a prison to visit her father and said her mother told her that her father was drinking with his friends and that after an argument her father [committed the crime] and before that he had a serious traffic offence for which he got a suspended sentence. She said because her father’ [action],, he went to gaol. She said she remembered the police coming to her house to arrest her father.
The Tribunal asked the applicant to explain what she had said in the statutory declaration where she said she had contemplated suicide on several occasions. The applicant said that she was not suicidal in Vietnam, and she only felt suicidal when the relationship with [Ms A] ended. She said when she found out about her own sexual preference when she was [age] years old, she kept it to herself and had not told anyone about it because before she went to Australia her life depended on her parents, and she had to do whatever they wanted her to do. When asked whether she was on any mental health treatment, the applicant said “no.” When asked whether she had any diagnosis of any mental health condition, the applicant said “no.” She said when she completed high school, if she went to study overseas, she would have a new life.
The Tribunal asked the applicant why she did not mention any of the claims in respect to her father before and in response she said the people who interviewed her only asked about the time when she was between [age] years old.
The Tribunal asked the applicant if she had [Ms A’s] contact details and she said she did. The applicant agreed to the Tribunal attempting to telephone [Ms A] to speak with her. The Tribunal spoke by telephone to a person named [Ms A].
[Ms A] indicated she had been in a relationship with the applicant but that now they had separated. [Ms A] indicated that she was living in Melbourne. [Ms A] indicated that she was pregnant and in a relationship with a male person, [Mr A], an Australian citizen.
The Tribunal asked [Ms A] if she considered herself to be a lesbian. In response, she indicated that before she did but now she fell in love with a man.
The Tribunal asked the applicant if [Ms A’s] protection claims were similar to the applicant’s, that she was a lesbian and could not go back to Vietnam, and she said yes. [Ms A] indicated she thought that she was no longer in a registered relationship with the applicant. When asked if she herself applied to cancel the registered relationship, she said both she and the applicant applied to cancel the registered relationship, but as yet she did not have the paperwork to confirm that the registered relationship had been cancelled. The discussion with [Ms A] then ended.
The Tribunal asked the applicant if she wanted to say anything else. She said she wanted protection for her to lead a life that was true to herself. She felt that she would be in danger from her father. She said her father had threatened her before.
The Tribunal asked the applicant whether she had raised this issue before and she said no. When asked to speak about the threat the applicant said it happened when she was [age] years old when her mother took her and left to go to her grandmother’s house.
The Tribunal said in her protection application she indicated she had only lived at home, and in response she said she lived near to her grandmother’s house. She said her father used a sword and said if she went with her mother he would use the sword to cut off her feet. The Tribunal again said in her protection application she indicated she had only lived at home, and in response she said she would be treated badly by her father because she did not follow what he wished for her and kept asking her why she didn’t have a boyfriend. She said she did not want to be forced to marry any person like a [Country 1 national], like what happened to her auntie. She said she had witnessed her relative marry a [Country 1] man.
The applicant’s representative made oral submissions, saying the applicant was credible and she was a lesbian. He said that in respect of whether she had a well-founded fear, the country information was very general and it was the domestic violence that she feared and would not be afforded protection from the police due to police corruption. The applicant’s representative referred to the video.
The applicant asked the Tribunal to view another video clip, which was in Vietnamese.
The applicant’s representative made oral submissions that if the applicant went back she would be forced to suppress her sexuality and be forced into a marriage against her sexual preference. The applicant’s representative said he did not want to make any further submissions and did not want to provide any written submissions.
The applicant asked the Tribunal to view the video clip of a lesbian woman who suffered abuse.[4] The interpreter said that the woman being interviewed was a lesbian who was forced by her parents to get married to a man. The interpreter said that the woman indicated she had been abused and the marriage was not happy and then she started to find out her true self. The interpreter said that the woman said when the husband found out she was a lesbian he became violent. She said it happened many times and she went back to her parents, but then he would come and apologise and she would go back but it would happen again. The interpreter said that the woman asked her parents for help but no one understands her situation. The interpreter said that the woman went to the city (Hanoi) to raise her child. She said she got no help. The interpreter said that the woman said she was working at a woodworking factory. The interpreter said that the woman said her parents now accepted her situation.
[4] Chuyện của người đồng tính nữ bị bạo hành | VTC14 accessed 3 September 2019.
Country Information
The Tribunal acknowledges that there is a newer DFAT Country Information Report for Vietnam dated 13 December 2019. In respect to Sexual Orientation and Gender Identity it states:
Sexual Orientation and Gender Identity
3.79 Same-sex relationships are legal in Vietnam, provided they comply with other legislation also applicable to heterosexual activity and are consensual between adults. The age of consent in Vietnam is 16 regardless of gender or sexual orientation. The revised Law on Marriage and Family that entered into force on 1 January 2015 allows same-sex weddings but does not offer legal recognition or protection to unions between people of the same sex, including with regard to inheritance and adoption. Vietnamese law also does not offer protection from discrimination on the basis of sexual orientation or gender identity in relation to housing, employment, or access to services.
3.80 There has been a marked improvement in recent years in the quality and quantity of discussion about lesbian, gay, bisexual, transgender and intersex (LGBTI) issues and rights in Vietnam, aided by the fact that the government does not consider LGBTI issues to be politically sensitive. Vietnam’s first gay pride parade, Viet Pride, took place peacefully in Hanoi in 2012 and has since become a nationwide annual event. The 2019 parade event in HCMC was themed ‘Out and Proud’ and was part of a series of activities marking Viet Pride. There are LGBTI-friendly spaces in Hanoi and HCMC, including coffee shops, art spaces, and ‘queer zones’, which are visually identifiable by stickers and located on a community map. Social media, especially Facebook, is the main channel for finding networks, and younger LGBTI members are increasingly accessing information from their peers and community. Advocacy groups, including the Parents, Families and Friends of Lesbians and Gays, provide support to LGBTI individuals. Information and support networks remain limited at the provincial level, however. Local research on ethnic minority LGBTI communities reported self-stigma and access to services as the key challenges for this community.
3.81 While there have been some improvements in the legislative environment, and an improvement in the level of social acceptance, Vietnamese culture continues to promote traditional views of gender and sexuality that tend to be conservative. Non-normative sexual orientations and gender identities are believed by many to be the result of karma; LGBTI individuals or their families are commonly believed to have committed negative actions in their previous lives. A 2015 study conducted by a local LGBTI rights organisation found that one in three LGBTI individuals had experienced discrimination within families, schools, workplaces or health providers in the previous year, but only two per cent of respondents had reported their cases to police or local authorities. In-country sources report that gay and lesbian people typically seek employment and then ‘come out’, to prevent their sexuality affecting recruitment decisions. Transgender individuals reportedly experience job denial based on their gender expression, forcing many to engage in low-paid jobs, including prostitution. Discrimination and bullying in schools from peers, has caused some LGBTI individuals to leave school early, which has negatively affected their employment prospects.
3.82 Domestic violence against LGBTI people is high, largely due to the societal expectation of marriage. A local LGBTI rights organisation reported receiving calls on a weekly basis from LGBTI individuals who had been beaten or prevented from leaving their homes by family members. Some parents and siblings have also been reported to pressure LGBTI family members to change their appearance, to enter a heterosexual marriage and have children (especially for lesbians), or, in extreme cases, to leave the family. Families have also been involved in forced medical treatment, ranging from medication to psychological interventions, but the number of forced medical treatments has reportedly reduced. In-country sources report that public violence against LGBTI people is low, but occurs more commonly against transgender people as they tend to be more visibly identifiable. A 2015 study by Save the Children found that young LGBT people were frequently subjected to police hostility, including physical violence, meaning that many felt unable to seek the assistance of police when needed.
3.83 Article 37 of the revised Civil Code (2015), which came into effect in 2017, recognises the right to legal gender recognition of transgender people. The Article still requires additional legislation to be fully implemented, and a draft law protecting the legal status and rights of transgender people is expected to be reviewed by the National Assembly by 2020. LGBTI advocates have criticised Article 37’s prerequisite for individuals to undergo sexual reassignment surgery (SRS) in order to legally change identity documentation, arguing that some transgender individuals are unable to or choose not to undergo SRS. SRS typically involves two separate procedures for the upper and lower body. The procedure for the upper body is considered plastic surgery, but is typically not costly and can be undertaken at provincial hospitals. The procedure for the lower body requires major surgery and such surgery and aftercare costs are reported to be around VND13 million (approximately AUD800), beyond the means of most transgender people. SRS is covered under the national health insurance scheme for intersex people, but not transgender people. Medical interventions on intersex infants and children in Vietnam are permissible under Article 36 of the Civil Code and are still performed.
3.84 DFAT assesses that LGBTI individuals in Vietnam face a low risk of official discrimination, and a moderate risk of societal discrimination on a day-to-day basis. DFAT further assesses that LGBTI individuals in Vietnam face a moderate risk of violence due to their sexual orientation or gender identity. As most societal discrimination and violence against LGBTI individuals is within the domestic context, DFAT assesses that LGBTI individuals can typically relocate within Vietnam, subject to their individual financial circumstances, household registration requirements (see Household Registration), and the availability of LGBTI support services and networks.

In respect to Police it states:
Police
5.6 The MPS manages the People’s Public Security Forces of Vietnam (PPSFV), the country’s main police and security force. It comprises two core forces: the People’s Security Force primarily collects intelligence to detect activities that damage national security; while the People’s Police Force is responsible for social order and public safety and manages more traditional police work, including criminal investigations, neighbourhood policing, traffic control, household registration, and identification cards. Police recruits are required to be members of the CPV or Communist Youth League.
5.7 The PPSFV operates at national, provincial, district, and commune levels. Commune police often have lower salaries and fewer benefits than police at the district, provincial, and national levels and generally receive inadequate training in law and basic police procedures. Provincial and local police forces have a high degree of discretion in their activities. International observers report that corruption is highly prevalent within the ranks of the police. Sources have reported recent cases of organised crime groups bribing local police to not respond in specific situations, and instances in which police have not responded when citizens have called for help. Sources have also reported that local police sometimes use contract ‘thugs’ and ‘citizen brigades’ to harass and beat political activists and religious adherents perceived as undesirable or a threat to national security.
5.8 The Supreme People’s Procuracy has authority to investigate security force abuse, but in practice, police organisations operate with significant discretion and little transparency. Human rights groups have reported multiple recent cases of police abuse where officers have acted with impunity. In the rare cases where officers are prosecuted and convicted, light or suspended sentences or internal disciplinary measures such as warnings are commonly applied. There is no independent police complaint agency to investigate allegations of police abuse by ordinary citizens.
5.9 DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity.
In respect to Vietnam’s economy it states:
ECONOMIC OVERVIEW
2.8 The World Bank describes Vietnam as ‘one of the most dynamic emerging countries in East Asia’. The economic reforms launched in 1986 transformed the country from one of the world’s poorest to ‘low middle income status’ over a period of 25 years. Vietnam currently has one of the world’s fastest growing economies, with its gross domestic product (GDP) estimated to have increased by 7.1 per cent (year-on-year) in the first half of 2018. In 2018, GDP per capita was forecast at approximately USD 2,551 (approximately AUD 3,411).
2.9 According to the World Bank, Vietnam’s poverty rate (defined as those living on less than USD1.90 per day) declined from 20.8 per cent in 2010 to 9.8 per cent in 2016. Reductions in poverty have been particularly pronounced among Vietnam’s ethnic minority population, which has historically experienced higher rates of poverty compared to the majority Kinh ethnic group. The poverty rate among the ethnic minority population dropped from 57.8 per cent in 2014 to 44.6 per cent in 2016 (compared to a decline of only 1.4 per cent between 2012 and 2014), representing the steepest decline in poverty for the past two decades. It also marks the first instance in Vietnam when declining poverty among ethnic minorities drove the overall decline in poverty rates nationwide.
…..
2.14 The World Bank reported in 2018 that Vietnam’s employment rates were high and unemployment rates were very low by global standards. Labour force participation rates are also high for both men and women, who participate in the labour force in almost equal numbers. Job quality is low, however, with only 10 per cent of jobs in professional or managerial occupations. The top ten occupations, which employ two-thirds of the labour force, are very low skilled, including agricultural, forestry and fishery labourers. Around three-quarters of jobs in Vietnam are in family farming (39 per cent), household enterprises (20 per cent), or employment without a contract (17 per cent). These occupations are characterised by low pay and limited worker protections. Ethnic minorities, women, and unskilled workers make up the majority of workers in these jobs.
In respect to corruption it states:
2.17 Vietnam ranked 116th (equal with Indonesia) out of 189 countries in the 2018 United Nations Development Programme’s Human Development Index. Transparency International’s 2018 Corruption Perceptions Index ranked Vietnam 117th out of 180 countries, higher than its neighbours Cambodia (at 161st) and Laos (at 132nd). Vietnam has a comprehensive anti-corruption legal framework, including through the Law on Anti-Corruption (2005) and several provisions under the Penal Code. Several government agencies have authority to investigate and prosecute corruption offences, but enforcement remains problematic and indictments of high-level corruption are often perceived to be politically motivated. Corruption is perceived to be widespread in the ranks of the Vietnamese police, public service sector and land administration affecting construction and development.
Findings
The Tribunal finds that a) the applicant is [name] born [date], b) the applicant is a citizen of Vietnam, and Vietnam is her receiving country.
The Tribunal has carefully considered the applicant’s claims and evidence. The updated 2019 DFAT country information report, in respect to Sexual Orientation and Gender Identity, Police, the Economic Overview and Corruption is generally consistent with the previous information in the 2017 DFAT country information report.
In respect of the applicant’s claim she is a lesbian, the Tribunal accepts that the applicant and [Ms A] did have a registered relationship in 2017 but that the registered relationship appears to now be cancelled. The Tribunal accepts that the applicant and [Ms A] ended their relationship and [Ms A] commenced a relationship with an Australian man, [Mr A], to whom she was pregnant to at the time of the hearing. Accordingly, the Tribunal finds that the applicant identifies as a lesbian.
The Tribunal finds that the applicant did return to Vietnam in 2018 and finds that this action causes the Tribunal to find that the applicant does not have a genuine fear in returning to Vietnam. The Tribunal notes that the applicant said she went to visit her sick grandmother and has not told her father that she is a lesbian. However, the Tribunal considers that if the applicant genuinely feared for her life in going back to Vietnam, she would have not gone back to Vietnam for any reason, including to visit her sick grandmother.
In respect to the applicant’s claims about her father’s violent past, threats and criminal record, s.423A of the Act states:
423A How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of an RRT reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a) raises a claim that was not raised in the application before the primary decision was made; or
(b) presents evidence in the application that was not presented in the application before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The Tribunal finds that the new claims in respect to the applicant’s father were not raised in the application before the primary decision was made. The Tribunal finds that there was ample opportunity to raise such claims at the time of the Departmental interview. The Tribunal does not accept that the applicant’s explanation that the people who interviewed her only asked about the time when she was between [age] years old is a reasonable explanation as to why the claim was not raised before the primary decision was made. Accordingly, the Tribunal has drawn an inference unfavourable to the credibility of this claim and does not accept the applicant’s claims that her father has a violent past, or has ever threatened her or that her father has a criminal record. The Tribunal does not accept that there is any threat at all to the applicant from her father. The Tribunal finds that the applicant’s claims in respect to her father, or any threat from her father, are an embellishment and are not credible.
In respect to the risk of harm to the applicant should she return to Vietnam in the foreseeable future, the country information is overwhelmingly positive in regard to the treatment of LGBTI people in Vietnam, and the Tribunal places high weight on this country information.
The Tribunal does not accept that there is any genuine threat to the applicant from her father or the general public or the authorities on the basis of her being a lesbian should she return to Vietnam in the foreseeable future.
The applicant is a young woman with an employment history and an Australian educational qualification. The country information indicates that Vietnam’s economy is growing well. Accordingly, the Tribunal does not accept that the applicant will have to return to her family home in Vietnam. Indeed, the Tribunal finds that the applicant, given her profile, would reasonably be able to find employment and support herself and live openly as a lesbian on her return to Vietnam.
The Tribunal has considered the applicant’s claim that her family will force her into a marriage against her will. The Tribunal note that the DFAT country information in the 2017 report does not refer to forced marriage but that the 2019 report does refer to forced marriage. However, the 2019 report only refers to children as being the subject of forced marriage – and the applicant is not a child. The Tribunal notes that the Youtube video described above gave an account of a woman who, subsequently, realised she was a lesbian, had been forced to be married but that after the woman had separated her family had accepted her situation. The Tribunal accepts that it is possible that the applicant’s family may place pressure on her to get married. However, the given the country information above about the general acceptability of lesbians in Vietnam, the Tribunal finds that it is likely that the applicant’s parents will accept her identity as a lesbian and not force her to get married to a person she does not want to get married to. Indeed, the Tribunal finds that there is insufficient information before the Tribunal to support any reasonable finding that the applicant, in her circumstances as an independent adult woman who has lived apart from her family both in Vietnam when she lived in Hanoi and also when she lived abroad in Australia and away from her family for years, with an employment history and an Australian educational qualification, would be forced to be married against her will. Accordingly, the Tribunal does not accept the applicant’s claims that she would be forced to be married against her will, or that any harm would reasonably be caused to the applicant arising out of this circumstance, should she return to Vietnam in the foreseeable future.
The Tribunal finds that the country information is insufficient for the Tribunal to find that the applicant would not have access to the Vietnamese police should she require it in her circumstances.
Refugee criterion assessment – s.36(2)(a)
The Tribunal considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
For the reasons given above, the Tribunal finds that the applicant is a lesbian but she does not have a genuine fear in returning to Vietnam. The Tribunal is not satisfied that there is a real chance that, if the applicant returned to Vietnam, the applicant would be persecuted for being a lesbian. The Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.
Complementary Protection Criterion Assessment – s.36(2)(aa)
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach, and in the finding the decision maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant.
In respect of the Tribunal’s consideration as to whether complementary protection applies to the applicant, the Tribunal accepts and adopts the findings above.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2020] AATA 2056

5 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction