1720835 (Refugee)

[2024] AATA 4224

1720835 (Refugee) [2024] AATA 4224 (24 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720835

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mary Sheargold

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 May 2024 at 10:35 am (VIC time)

DATE OF WRITTEN RECORD:                7 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 07 October 2024 at 10:53am

CATCHWORDS
REFUGEE – protection visa – Vietnam – gender and membership of particular social group – transgender woman – family ostracism, workplace discrimination and social ridicule – private social meetings but no overt presentation in home country – full presentation in Australia and gender reassignment surgery scheduled – mental health and treatment – country information – no anti-discrimination laws – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), 5J(1), 36(2)(a)

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 dependants.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 24 May 2024, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. [The applicant] is a Vietnamese national who has confirmed her Vietnamese nationality and that claimed nationality has been accepted by the Department and is accepted by the Tribunal.

4. She comes from a small town in [District], Soc Trang province, and was born on [Date].  She was the youngest of [the] children in her family.  One of her older sisters and one older brother have passed away.  Her parents divorced when she was a toddler, and her mother passed away in [Year] aged [Age]. She does not know her father.

5. [The applicant] was raised in a Buddhist household but converted to Christianity when she came to Australia and regularly attends church in [Suburb].  She has provided the Tribunal with evidence of her acceptance and rites of initiation into that church.

6. [The applicant] dropped out of school in Year 9 and stayed at home caring for her mother.  A friend of her oldest brother’s sister-in-law taught her how to do [job skill].  Despite being over [Age] years old, [the applicant] has never qualified as [an occupation].  In Australia, she works in a [workplace] at an apprentice level.  In Vietnam, she relocated to Saigon and worked in a [workplace] where the owner promised to pay her for her work, but deducted 100% of her wages to cover lodging and food that he provided to her.  She never earned her own money in Vietnam.

7. [The applicant] has explained to the Tribunal that she has never married and never been in any kind of romantic relationship.  She stated that she has only ever been interested in men, but in Vietnam, people did not give any affection back toward her and avoided her because they did not want to be infected with her ‘characteristics’.  [The applicant] stated she has a lot of friends in Australia, but no romantic attachment to any of them.

8. She explained to the Tribunal that her own siblings have persecuted her for her sexuality for as long as she can remember.  She bears a scar on her face from where one of her older brothers beat her.  Most of her siblings have disowned her because they do not approve of her sexuality and gender identity.  She has no contact with anyone in Vietnam at all.

9. When [the applicant] first arrived in Australia in 2008, she lived with her niece.  After a short visit, she returned to Vietnam and came back in 2013 to attempt to live life true to her character.  She told the Tribunal that her niece’s partner was cruel to [the applicant] when she arrived; he forced her to sell drugs for him, he beat her up, kicked her out, and ultimately, the police issued intervention orders preventing further contact between them.

10. [The applicant] suffers ongoing depression and anxiety as a result of this treatment and is medicated for her conditions. She brought her prescription medications to the hearing to show the Tribunal.  She is also depressed and anxious from the treatment she received in Vietnam; when she went home after her first visit to Australia, she returned to her old workplace in Saigon and resumed her former lifestyle of attending secret meet ups of transsexual people where they would dress in their preferred clothing, make up, etc. within private homes.  While she never overtly presented as a woman in Vietnam, she was ultimately dismissed from her role in the [workplace] where she had worked for almost 20 years because her boss did not like her character, and claimed that some of his clients did not like the way she presented either. She could not retain work in any other [workplace] in Vietnam because new employers would call her old boss for a reference and he would reveal her character to them, and so they would also sack her after a short period.

11. [The applicant] became homeless in Australia after her niece and partner kicked her out.  She had only her passport and a few belongings when she left their home.  She lived on the streets, sleeping on footpaths wherever she could, and this went on for around a month.  A friend introduced her to [Ms A], who accompanied [the applicant] at the hearing, who has become her adoptive mother in Australia.  [The applicant] has provided food and shelter for [the applicant] for many years.

12. [The applicant] claims to be terrified to return to Vietnam based on her previous treatment and experiences.  She told the Tribunal that everyone from government officers, the police, and hospital staff, would call her names and ridicule her, accusing her of being neither male nor female.  They would throw her identity documents in disgust. 

13. [The applicant] told the Tribunal that she would choose to die in Australia before being returned to Vietnam.  She explained that if she expressed her gender the way she did before the Tribunal, she would face harm worse than her previous experience where she did not overtly present as female, and she would possibly be killed.

14. [The applicant] has worked with [Employer] over many years and is in the final stages of preparation for gender reassignment surgery. She provided the Tribunal with detailed documents from [Dr A], who will perform surgery likely in June this year, outlining all the necessary procedures and anticipated costs associated.

15. The Tribunal is satisfied that [the applicant] belongs to a particular social group of people being transsexual women in Vietnam.  The Tribunal finds that [the applicant] has a well-founded fear of persecution in Vietnam owing to her history of abuse and discrimination that she experienced even prior to undertaking gender reassignment surgery.  The Tribunal is satisfied that she fears that persecution for the essential and significant reason of her gender identity.

16. Further, the Tribunal is satisfied that, based on the country information available to it at the time of review regarding the treatment of transgender people in Vietnam, [the applicant] faces a real chance of suffering serious harm if she is returned to Vietnam.  DFAT’s latest country information report notes that men or women who are seen as presenting in a way not consistent with traditional gender roles, especially trans people, face verbal and physical abuse in Vietnam.  The report notes that trans people can experience discrimination in employment and that there are no anti-discrimination laws enacted to protect them from discrimination on the basis of their gender identity.  The report notes that LGBTI people do not enjoy day-to-day acceptance in Vietnam.  [The applicant]’s lived experience over almost [Number] years in Vietnam accords with DFAT’s views.

17. Finally, the Tribunal is satisfied that [the applicant]’s efforts to undergo gender reassignment surgery are exclusively linked to her lifelong desire to present as a woman, and that she has not sought this surgery to seek to strengthen her claims for protection in Australia.

18. For all these reasons, the Tribunal is satisfied that [the applicant] meets the requirement in s 5J(1) of the Act and that she is owed protection in Australia.  She therefore meets the requirement of s 36(2)(a) of the Act.

    DECISION

19. The Tribunal remits the decision under review with the direction that the applicant satisfies s 36(2)(a).

    Mary Sheargold
    Member