1808690 (Refugee)

[2024] AATA 3203

1808690 (Refugee) [2024] AATA 3203 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808690

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Genevieve Hamilton

DATE:2 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 02 April 2024 at 1:48pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – trans women – gay – transgender – gender identity – identity document renewal refused – conflict with family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 November 2016. The delegate refused to grant the visa on 28 March 2018.

3. The applicant attended a hearing of the Tribunal on 15 March 2024.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. In her protection visa application the applicant said she was born in Ho Chi Minh City in [year].  Her parents and younger brother live there.  She last arrived in Australia in February 2012 having departed from HCMC on a Vietnamese passport.  She had a student visa for Australia, extended through to November 2016.  She had been studying in Australia since [year], from immediately after finishing high school in HCMC.  She returned to Vietnam from December 2011 to February 2012.  Since February 2015 she had been working at a [Industry 1 business].  She had completed her high school education in Melbourne followed by certificate courses in [Industry 1] and was studying for a [diploma]. 

17. The applicant’s passport identifies her as male.  It expired in 2018.  

18. In her statement in support of her application the applicant said her relationship had deteriorated with her parents and she had minimal contact with them, as they do not accept her sexual preferences.  They stopped supporting her financially by early 2015. 

19. The applicant said that the law in Vietnam did not recognise the rights of gay people, they face discrimination on a daily basis, society thinks they are psychologically sick, they are verbally abused in public, they do not have equal opportunity in employment, the police and local authorities do not offer protection, and she fears for her safety there.  She has to hide her real self and cannot live openly and freely.

20. The applicant said she was born gay with a preference for men, had never been in a relationship with a woman, and all her sexual experiences are in Australia.  The last time she visited her parents they forced her to cut off her hair.  In 2014 she started growing out her hair and now all her friends know her as [female name].  As a child she was not interested in boys stuff, she liked Barbie dolls and to wear dresses.  When at home alone she would wear her auntie’s dresses and imagine herself as a princess.  At high school boys bullied her and called her gay; they would take her things off her and beat her up.  The teachers would not help her and she was not allowed to use the girls’ bathroom.  She was afraid, and was always hiding.  If she fell in love with a boy she could never tell them because they would not want to talk to her any more.  In Australia she can be herself, has friends and can have a boyfriend.

21. At interview the applicant added that she was caught with her aunt’s make up on at the age of six and beaten by her mother.  She was not accepted at school, including by girls.  She had no friends.  When she went back to Vietnam in 2011 her parents cut off her hair and also tried to erase a feminine tattoo she had on the back of her neck.  After she returned to Australia she started coming out, with the support of her teacher.  She joined an online trans community and started taking hormones and adopting a fully female appearance.  She had breast implants but has not had gender reassignment surgery.  She has a boyfriend and has met his family.  They may marry and adopt a child.  In Vietnam she would not be safe in public, would be ostracised, her employment prospects were very limited and she would not have the specific healthcare she needs. 

22. At the hearing the applicant said she is not in a relationship at the moment.  She has no more contact with her family.  She had tried to get a new passport but the Consulate said her photo is too different.  She tried a photo without make up but they still would not accept it.  She cannot get a passport as a female because she has not had gender reassignment yet.  She wished she could have a gender neutral passport at least.  She has identified as a girl since she was a child and would rather die than go back to being identified as a male.  She pointed out that her Victorian driver permit photo, from since she was a learner, shows her as female-presenting (which is true). 

23. The applicant said she could not legally access hormones in Vietnam and would not have access to the health checks she needs.  She described how frightened she was of her family when she went back in 2011; when they cut off her hair they then took her to a salon to have it straightened off, and while there got someone to tattoo over her own tattoo with flesh coloured ink.  The attempt caused an infection and her skin peeled off.  She felt she had to obey them because she was dependent on them.  But it killed her inside. 

24. The applicant said she if she returned to Vietnam she would not be able to get employment without identity documents.  She can’t live with her parents.  She would not be able to rent accommodation, and she did not know how she would get hormones or trans-specific health care.  She said that Vietnamese trans women she knows of are working as prostitutes or in other demeaning occupations in order to survive. 

25. The current DFAT report contains the following information:

    Sexual orientation and gender identity

    LGBTI rights in Vietnam are mixed. Sex between adults of the same sex is legal and LGBTI CSOs are relatively free in their operation. Despite relative freedom from official interference, social stigma and discrimination against LGBTI individuals is common. The situation is better in large cities where LGBTI-friendly spaces such as cafes, shops and galleries exist, and many LGBTI people use smart phone applications and directories to engage in physical and online communities. Many LGBTI people use social media, especially Facebook, to network and find communities. However, online hate speech against LGBTI people is common.

    LGBTI issues are not seen as a particularly sensitive topic by the Government. However, LGBTI people do not have access to same-sex marriage or the right to adopt children. Pride parades can generally go ahead without being registered, in contrast to political rallies and protests and Government sanctioned pride events went ahead even during the COVID-19 pandemic.

    LGBTI people report discrimination as a part of their everyday lives in areas such as healthcare, education and employment, but especially in families. Men or women who are seen as presenting in a way not consistent with traditional gender roles, and especially trans people, face verbal and physical abuse. In-country sources told DFAT that wealthy gay men face the least discrimination but that most LGBTI people, regardless of their wealth and identity, still hide their LGBTI identity in order to avoid discrimination.

    Family pressure is strong and many families believe that LGBTI identity can be 'cured'. LGBTI people may be forced by their families to attend conversion therapy. Lesbians face particular pressure from families. In-country sources told DFAT that 'corrective rape' (the practice of a man raping a lesbian to 'correct' her sexual and gender identity) can occur but the often-hidden nature of such crimes makes it impossible to assess how commonly this occurs. In-country sources told DFAT that the COVID-19 pandemic has forced many LGBTI people to return to their families' homes where they may face discrimination and violence. DFAT spoke to LGBTI people inside and outside Vietnam who reported being afraid to go home due to the risk of violence or family pressure to marry. Aging LGBTI people who do not have children are at particular risk, given the traditional role that children play in caring for the aged in Vietnamese culture.

    Discrimination against transgender people may come from people who do not understand the difference between different LGBTI identities, and any person who does not present as traditionally cisgender male or female may simply be seen as 'gay' or 'queer' and face similar discrimination to other LGBTI people. Transgender people in practice may be unable to access trans-appropriate healthcare, for example gender-affirming surgery, or may not have their gender identity recognised by healthcare providers. Many trans people work in the informal sector where discrimination means that the only work available might be in the entertainment industry. Other trans people can be found in other parts of the economy, working in the formal public and private sectors, but can experience discrimination when applying for or working in those jobs. These workers are not protected by anti-discrimination laws and may experience discrimination or a failure to recognise their gender identity.

    In-country sources told DFAT that street violence against LGBTI people is uncommon. Violence is more likely to occur in domestic settings, particularly from parents but also among intimate partners (see domestic violence, covered under women, but may also apply to transgender people, who may be able to access services directed towards women). Verbal abuse and discrimination or attempts to invade the privacy of those involved in pride events are reported by in-country sources.

    LGBTI people, like other Vietnamese people, must complete compulsory military service. Sources told DFAT that there is a culture of denial of LGBTI people in the military. Sources told DFAT that they will generally hide their sexual orientation or gender identity in order to reduce the risk of violence.

    DFAT assesses that LGBTI people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech. LGBTI people face a moderate risk of societal discrimination, particularly within their families. LGBTI Vietnamese people do not enjoy day-to-day acceptance but are also unlikely to experience violence (except in the military, for example when completing compulsory military service) or overt discrimination in access to goods and services.

    FINDINGS AND REASONS

26. The Tribunal finds that the applicant’s country of nationality is Vietnam and that she has no right to enter or reside in any other country.

27. The applicant is a trans woman and for the purpose of this decision the Tribunal finds that trans women are a particular social group in Vietnam. 

28. The applicant has experienced serious harm from her family.  However she is unlikely to have any further contact with them in Vietnam. 

29. The country information indicates that community violence against LGBTI is low.  Given that a lot of trans women are working as prostitutes or “entertainers”, the Tribunal wonders whether this general information about LGBTI is accurate in the case of trans women in particuar.  However there is no contrary specific information.  The social and economic discrimination they experience, in employment and access to health care, does not appear to threaten their capacity to subsist. 

30. The Tribunal is therefore not satisfied that the applicant faces a real chance of persecution, and she is therefore not a refugee as defined. 

31. With regard to complementary protection, the applicant is unable to obtain identity documents reflecting her gender in Vietnam.  Planned legal changes in Vietnam to allow this will only be available to her if she undertakes gender reassignment (Vietnam plans to help trans people legally change their gender (gendergp.com)).  This exposes her to having her trans background revealed every time she needs to use her ID documents in dealing with officialdom or society.  Given the prevailing social stigma the Tribunal is satisfied that there is a real chance that the applicant will experience an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. 

32. The Tribunal is therefore satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm.  This risk is faced by the applicant personally.  There is no area of the country where there would not be a real risk that she will suffer significant harm.  She cannot obtain protection from an authority of the country, such that there would not be a real risk that she will suffer significant harm. 

    CONCLUSION

33. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    DECISION

34. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

    Genevieve Hamilton
    Member