1817548 (Refugee)

1817548 (Refugee) [2024] AATA 3164 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817548
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Don Smyth
DATE:27 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 March 2024 at 12:21pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from debt collector because of money borrowed by husband – house vandalised and threats to kill applicant and hurt family – delay in applying for protection – applied after another subclass visa refused – new claims of violence by husband, gender and sexuality – physically assaulted and threatened – police inaction – same-sex relationships and marriage with Australian citizen – supporting statements – no other family support – credibility – adverse inference for late claims – inconsistent claims and evidence – debt and violence claims not accepted – claims of gender, sexuality and relationship accepted – applicant now identifies as man – country information – mixed legal and societal acceptance, and widespread discrimination and violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 5L(c)(ii), (iii), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant claims to be a citizen of Vietnam and has provided a copy of a Vietnamese passport. I accept that the applicant is a citizen of Vietnam.
According to information provided in the protection visa application, the applicant was born in Kien Giang, Vietnam, in [Year].
The applicant applied for a protection visa on 8 November 2016. On 25 May 2018, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
According to information provided in the protection visa application, the applicant lived in Rach Gia, Kien Giang from 2007 to 2012. The applicant gave a number of addresses in Australia, including addresses at [Town] from 2013 to 2014, in [Suburb 1] from 2014 to 2015, and in [Suburb 2] from 2016 until the time of the visa application.
The applicant indicated in the application that they had attended school in Vietnam from [grade range], and had worked as [an Occupation] in Vietnam from 2007 to 2012.
The applicant indicated that their father was deceased and their mother was an Australian citizen. The applicant’s [sisters] were resident in Vietnam at the date of the visa application. The applicant referred to a [Child 1], born in Vietnam in [Year] and a [Child 2] born in 2011. The applicant referred to having divorced in 2014.
The applicant indicated that they had departed Vietnam legally [in] September 2013, arriving in Australia as a visitor [in] September 2013.
The applicant made written claims in the application. The applicant referred to having lost everything in Vietnam and owing people a lot of money. With regard to reasons for leaving Vietnam, the applicant stated that it was to get away from the debt collector who threatened to kill them and hurt their family. The applicant expressed a fear that their life would be in danger if they were to return to Vietnam. With regard to harm experienced in Vietnam, the applicant referred to getting bashed up and getting hurt for not paying the debt. With regard to whether they had sought help within Vietnam, the applicant referred to being too scared and not knowing where to go. The applicant referred to a threat to kill them and their family. The applicant indicated that they did not think the authorities could, or would, protect them and referred in this regard to ‘domestic issues’. With regard to relocation, the applicant referred to not knowing where to go.
On 25 May 2018, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate’s decision set out aspects of the applicant’s migration history. These included that the applicant was granted a Visitor – Sponsored Family Stream (Subclass 600) visa in Vietnam on 2 September 2013, arrived in Australia [in] September 2013 and applied for a protection visa on 8 November 2016. The delegate was not satisfied that there was a real chance of persecution for one or more of the reasons in s 5J(1)(a) of the Act. With regard to complementary protection, the delegate was satisfied that the applicant could obtain, from an authority of Vietnam, protection such that there would not be a real risk that they would suffer significant harm on return. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there was a real risk that the applicant would suffer significant harm.
The applicant attached a copy of the delegate’s decision to the review application.
The applicant attended a Tribunal hearing on 27 February 2024. At the hearing I discussed with the applicant their claims in relation to the threat of harm from a debt collector. The applicant also raised claims in relation to having been subjected to violence and abuse by their former partner in Vietnam, as well as claims with regard to gender and sexuality. I have carefully considered all of the applicant’s evidence about these matters. Aspects of this evidence are discussed in my reasons below.
Following the hearing, I gave the applicant further time to provide additional information. The applicant submitted a large volume of written material in post-hearing submissions. This included the following:
·     A statutory declaration from the applicant dated 4 March 2024. In the statement, the applicant described having witnessed domestic violence against their mother. The applicant described being subjected to abuse by their husband and to the husband borrowing money from loan sharks. The applicant indicated that their mother and [sister] were sponsored to come to Australia by the mother’s husband in 2009. The applicant described having a new life in Australia and having freedom to live to their true gender identity and sexuality, and to live with their female partner without fear of trauma, suffering or threats. The applicant described the history of the relationship with the applicant’s wife, [Ms A], indicating that they moved into their shared home [in] October 2023. The applicant said that long before cohabiting they had chosen Valentine’s Day for a wedding based on ‘auspicious story-telling’. The applicant expressed a fear that their family would unravel.
·     A copy of the applicant’s Queensland Driver Licence (showing the home address).
·     Copies of taxation records.
·     A statutory declaration, dated 5 March 2024, from [Ms A]. In her statement, [Ms A] described aspects of her own history, as well as the history of her relationship with the applicant. She described also aspects of the household routine. The Tribunal was also provided with additional documentary material relating to [Ms A], including identity documents and medical records.
·     A statutory declaration, dated 4 March 2024, from [Ms B] who indicated that she had known the applicant for 10 years as the applicant was the sister of [Ms B]’s former partner. She described having met the applicant’s wife, [Ms A], around two years earlier, seeing them about once a month and engaging in various social activities with them. She described the nature of the applicant’s relationship with [Ms A].
·     A statutory declaration, dated 4 March 2024, from the applicant’s sister, [Ms C]. [Ms C] described the history of the applicant’s relationship with her former husband. She also described the applicant’s relationship with [Ms A], stating that they always cared for each other attentively. She described friends and family bearing witness to the marriage. The Tribunal was provided with additional documentation in relation to [Ms C], including copies of her Queensland Driver Licence and Australian passport.
·     A statutory declaration, dated 4 March 2024, from [Ms D], who described herself as the best friend of the applicant’s sister, [Ms C]. She indicated that she had known the applicant and the applicant’s wife for about a year, and described engaging in social activities with them. She stated that she wholeheartedly supported their relationship.
·     A statutory declaration from the applicant’s mother, [Ms E]. She described her own relationship history as well as that of the applicant. [Ms E] described the applicant’s relationship with [Ms A], stating that she strongly supported their union. She described the wedding as having been supported by both families. The Tribunal was provided with copies of [Ms E]’s Australian passport and Queensland Driver Licence.
·     A statutory declaration from [Ms F], who indicated that she had met the applicant and [Ms A] through her work. She described learning that they were a couple and witnessing their affection for each other. She described the applicant as living up to the role of a father and husband in the family. She described the relationship as being committed.
·     A statutory declaration from [G] who described socialising with the applicant and [Ms A] and provided a description of their relationship and wedding.
·     A statutory declaration, dated 4 March 2024, from [H], who also provided evidence about the applicant’s relationship with [Ms A].
·     A statutory declaration, dated 12 March 2024, from [I], describing the applicant’s relationship with [Ms A].
·     A copy of the marriage certificate for the applicant and [Ms A], recording a marriage [in] February 2024 and identifying the applicant as the groom.
·     An electricity bill addressed to the applicant and [Ms A] at an address in [Suburb 2], as well as a tax invoice addressed to them at that address.
·     A statement for a joint bank account, showing transactions from January and February 2024.
·     Statements for a Business Transaction Account and bank accounts relating to the applicant and [Ms A].
·     A contract relating to the purchase of a residential property in [Suburb 2].
·     Numerous pay slips.
·     A collection of photographs together with commentary documenting aspects of the applicant’s history in Australia, including their relationship with [Ms A]. A number of the photographs show the applicant and [Ms A] together, in the workplace and in numerous social situations such as at birthdays, Christmas celebrations and holidays. Several photographs also show a wedding celebration attended by a number of people.
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 (Cth) (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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the hearing, the applicant gave evidence about a number of matters, including their relationship with a person in Vietnam, threats and vandalism in connection with money borrowed by their husband, and sexuality and gender identity. I have carefully considered the applicant’s evidence about these matters. [Ms A] also attended the hearing. The applicant indicated that [Ms A] was their wife and that they wished the Tribunal to take evidence from [Ms A]. I did take evidence from [Ms A] at the hearing.
At the hearing, the applicant provided evidence about family composition. The applicant described having [sisters], and indicated that their mother and [their] sisters were living in Australia. The applicant’s father had passed away. The applicant gave evidence to the effect that one sister had come with their mother in 2010, and that the other sister had come six or seven years ago. The applicant indicated that their mother had come to Australia on a Partner visa and was now a permanent resident.
The applicant also gave oral evidence about their history in Vietnam, including their relationship with [Mr J]. The applicant indicated that they married in 2007. They had two children in Vietnam, aged [Ages]. [Mr J] was the father of the children and the children lived with him. The applicant described maintaining contact with the children. The applicant described having been physically assaulted and threatened by [Mr J]. The applicant also referred to the children having been physically assaulted and threatened. The applicant indicated that they were no longer married to [Mr J] and that he continued to live in Rach Gia, where the applicant had lived previously. The applicant expressed a fear of harm from the former husband. The applicant gave evidence about having called the police in the past and about the police saying that it was a domestic matter.
The applicant also gave evidence at the hearing about their husband having borrowed money in Vietnam and having suffered threats as a result. In summary, the applicant gave evidence to the effect that he borrowed money to gamble, although he said that it was to do business. It was in 2007 that he borrowed the money. He did not tell the applicant the amount that he borrowed. He only said that he had to pay 10 million per month. The applicant gave evidence to the effect that people kept coming to the house, vandalising the house and demanding to be repaid. The applicant did not know who the people were. The applicant said that they knew the applicant’s mother was in Australia. They thought the applicant was wealthy and could afford to repay them. The applicant indicated that the people came to vandalise the house in 2008. The applicant did give some money to pay them back. The applicant gave evidence about having called the police. The applicant indicated that their husband had not paid the loan in full. The applicant had put some money, including money sent by the applicant’s mother, towards paying the interest accrued on the loan. The applicant gave evidence that there had been no harm from those people apart from vandalising the place. The applicant also referred to receiving threats to kill them if they did not pay the money back. The applicant referred to being scared that they might do something if the applicant returned and did not have any money to pay them.
When asked about other reasons the applicant feared going back to Vietnam, the applicant said that their sexual orientation had changed. The applicant referred to a fear of discrimination and harm. The applicant said in Vietnam it was not like here. One could not do what they wanted. The applicant described feeling reborn in Australia, like they lived like a human being, not like they used to be. The applicant referred to having a wife. When asked about when it was that the applicant started to realise their sexual orientation had changed, the applicant stated that they had realised when they came to Australia. The applicant referred to realising that they had a certain inclination as a child but said in Vietnam it was a thing that was not accepted so they were not sure at the time of their real inclination. The applicant went on to say that in Vietnam if you wanted to behave like that you weren’t allowed to. The applicant referred to finding freedom in Australia and being reborn. Here the applicant could live as their true self. The applicant said that they did not get discriminated against. People treated them like a person and gave respect.
The applicant gave evidence about having had relationships with two women in Australia. The applicant described firstly having had a relationship for a number of years with a [Country] student, whom she named. The applicant referred to having lived with this person but said that they had broken up about a year earlier and had since ceased contact.
The applicant also gave evidence about the relationship with [Ms A]. In summary, the applicant indicated that they had been working together with [Ms A] at a [Workplace] for two to three years. The applicant indicated that they had lived together for about 6 months in an apartment that had been purchased in [Ms A]’s name. The applicant gave evidence about [Ms A]’s history, indicating that she was from Vietnam but was now an Australian citizen. The applicant indicated that they shared finances and had a joint bank account. The applicant indicated that they went on holidays together, describing in particular a trip to Sydney a few months earlier.
The applicant indicated that they were living with [Ms A] at an apartment in [Suburb 2], Brisbane. The applicant described the apartment and the living arrangements there. The applicant described living there with [Ms A]’s [children] and one of her nieces. The applicant named the children and the niece and gave evidence about their activities. The applicant described driving the children to school each day.

The applicant said that if they returned to Vietnam they could not live their true self like a man like in Australia. When asked what they meant by this, the applicant referred to their current sexual orientation. The applicant stated that they could act like a man and wear men’s clothes and so forth. The applicant described seeing themselves as a man and feeling that they could protect their wife.
The applicant referred to getting married [in] February 2024. The applicant gave evidence to the effect that they married on that date because it had been identified as an auspicious day.
I also took evidence from [Ms A]. She described the history and development of her relationship with the applicant in a manner consistent with the applicant’s evidence. She described the assistance provided to her by the applicant. She indicated that they had moved in together in October 2023. She described the nature of their living arrangements at the apartment in [Suburb 2]. [Ms A] gave evidence to the effect that she and the applicant shared finances. She stated that what her husband earned helped towards repayment of the mortgage and groceries for the family. She indicated that they had a joint bank account. She referred to going on holidays together and referred in particular to a trip to Sydney before New Year. [Ms A] confirmed that she referred to the applicant as her husband. When asked to explain this, [Ms A] stated that it was because the applicant always acted like a man. The applicant protected her and her children. [Ms A] indicated that she did not have any relatives in Australia other than her [children]. She stated that the applicant was able to help her with the children and her shop. She indicated that her utmost wish was for the two of them to be together. She described her children as being very fond of the applicant. Having heard [Ms A]’s evidence, the applicant stated that their wish was to remain here so they could look after each other and look after [Ms A]’s children as well.
I have carefully considered the applicant’s evidence about the various matters discussed at the hearing. There are a number difficulties with the applicant’s claims and evidence, particularly in relation to the claimed mistreatment by the former husband and the claimed harm in relation to debts incurred by the husband. Those matters throw doubt on the credibility of the applicant’s claims in this regard. While they may also give rise to doubt about the applicant’s general credibility as a witness, having carefully considered all of the evidence about the applicant’s sexuality and gender identity (which includes evidence from a number of other witnesses and sources), I nevertheless accept that the applicant’s claims about these matters are credible.
As discussed with the applicant at the hearing, the applicant did not refer in the protection visa application to the claimed mistreatment by the former husband or otherwise raise this with the Department. Having arrived in Australia in 2013 and applied for protection in 2016, the applicant raised this claim for the first time at the Tribunal hearing in February 2024. When asked at the hearing about whether there was an explanation for this, the applicant made submissions to the effect that they were hoping that when they got a hearing they would have a chance to explain further, and that it might lose some of the meaning in the process of expressing it in Vietnamese and having it translated. When I raised with the applicant that it was now more than seven years since the applicant applied for protection, the applicant stated that they did not know that they had to update or submit new information. The applicant referred to being under the impression that after they lodged the application when they got invited by the Tribunal to the hearing they would be able to go into the detail of their case.
I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and am conscious of the sensitivity of claims related to domestic violence. I note also the Tribunal’s Guidelines on Gender and am conscious of the difficulty that applicants may have in presenting gender-related claims. Nevertheless, I did not find convincing the applicant’s explanation as to why the applicant did not raise this matter in the claims to the Department. It may be that the applicant thought they might have an opportunity to provide further detail at a later date. However, this does not adequately explain why the applicant would fail to make any reference in the application to the matter relating to the husband. Even if it was the case that the applicant was concerned about some meaning being lost in translation, I do not accept that this explains why the applicant would not seek to raise the claim in some form in their application. I find that there is no reasonable explanation for the applicant’s failure to raise this matter with the Department and, applying s 423A of the Act, I draw an adverse inference in relation to credibility as it relates to this claim. I have had regard to the fact that this matter has been referred to in some of the witness statements. However, the witness evidence does not outweigh my concerns about the very significant delay in raising this matter and I do not accept the applicant’s claims in relation to mistreatment by her former husband.
With regard to the applicant’s claims in the protection visa application and at hearing in relation to loans, I note that this application was lodged in November 2016, over three years after the applicant’s arrival in Australia in September 2013. I note that, when asked about this delay at the hearing, the applicant said that when they first arrived they were in a state of fear and did not know about the protection system that they might be able to seek while in Australia. The applicant stated that in Vietnam the police did not care and would not provide any protection. The applicant referred to the attitude of Vietnamese police to domestic violence. The applicant said that when they came here for the first few years they were not allowed to work so were just staying home living with their mother. The applicant claimed that later on a friend of the mother who heard the applicant’s story told the applicant’s mother that in Australia one could seek protection for those reasons. That was when the applicant became aware of the system. At first the applicant thought because they were Vietnamese the government would not do anything for them like back in Vietnam. Later on from what they heard from the mother’s friend they said it was not true. The applicant claimed that it was after they heard from this friend that they decided to make the application. The applicant’s mother made them aware that as a formal legal resident one would be entitled to protection but probably did not know that someone in the applicant’s situation could also be considered for protection.
I have considered the applicant’s submissions about this but do not accept that they provide a satisfactory explanation as to why there was such a significant delay in seeking protection if she had suffered the claimed difficulties in relation to loans in Vietnam. I have had regard to the applicant’s explanations about the police in Australia and about not knowing about protection. However, as discussed with the applicant at the hearing, the applicant’s evidence indicates that they were living with their mother. The applicant’s mother had been successful in obtaining a partner visa in 2010, suggesting that she had some familiarity with Australia and its migration system. If the applicant was in fear as claimed, I do not find convincing the suggestion that it would take over three years and the intervention of a family friend to be able to put in a protection claim. I do not find convincing the applicant’s explanations for the delay and find that this delay casts doubts on the applicant’s claims in relation to the loans.
Further, there were a number of inconsistencies between the applicant’s evidence about the loans in the protection visa application and the evidence about this at hearing. As discussed at the hearing, the applicant stated in the application that they owed people a lot of money. At the hearing, the applicant indicated that it was the former husband who borrowed the money, not the applicant. In the application, the applicant said that they got bashed up and hurt for not paying the debt. At the hearing, the applicant referred to vandalism but indicated that there was no physical harm. In the application, the applicant indicated that they did not seek help; they were too scared and did not know where to go. At the hearing, the applicant said that they called the police. When apparent inconsistencies were raised at the hearing, the applicant stated that, when they filled in the application, they were using Google translate so they could not be sure whether it was accurately translated. I raised with the applicant that they had said earlier in the hearing that they were aware of what was in the application and that it was accurate and correct. The applicant stated that they were confident that it was accurate when they typed it in Vietnamese for it to be translated so they assumed the translation was correct. With regard to the evidence at the hearing to the effect that they called the police, the applicant said that they meant that they told the police but the police did not help. The applicant said that this was what they meant in the application. They would not help.
I have considered the applicant’s explanations. I do not accept that mistranslation adequately explains the significant inconsistency, for instance as to whether the applicant was physically harmed. This is particularly the case in circumstances where the applicant had indicated earlier in the hearing that the evidence in the application was accurate and correct. I have considered the applicant’s explanation about the police not helping but nevertheless have difficulty reconciling the evidence in the application that the applicant was too scared and did not know where to go with the evidence at the hearing that the applicant did in fact go to the police. Particularly considering in combination the inconsistencies in the evidence and the significant delay in making the protection visa application, I have significant doubt about the applicant’s claims in relation to the applicant or the applicant’s former husband having borrowed money and about the applicant being targeted as a result.
However, notwithstanding my concerns about these aspects of the applicant’s claims and evidence, I nevertheless accept, for reasons outlined below, the applicant’s evidence in relation to their sexuality and gender identity.
I note that the claims in relation to sexuality and gender identity were not matters that the applicant raised with the Department. This was something I discussed with the applicant at the hearing. When asked whether there was a reason why they had not raised the claim about sexuality and gender identity, the applicant said that they only said today because they wanted to tell about their true sexuality but did not think it had anything to do with the application at the time. When they made the application they were still a female but they were a different gender now. That was why they wanted to explain the difference.
As discussed below, I consider that the applicant has provided a convincing account of the realisation of their sexuality and gender identity since having been in Australia. I accept that the applicant has developed relationships with women in Australia and that the applicant is now in a committed relationship with a woman in Australia. I accept that these have been significant developments since the time of the visa application and that this satisfactorily explains why the applicant did not make claims about sexuality and gender identity in the protection visa application.
The evidence before me in relation to the applicant’s sexuality includes the oral evidence of the applicant and the person the applicant claims is now their wife, [Ms A]. It also includes written evidence from a number of other parties describing the relationship and interactions with the applicant and [Ms A] as a couple.
I note that the applicant claims to have had relationships with two women in Australia. The first was a [Country] national whom the applicant named. Information available to the Tribunal indicates that the applicant was named as that person’s partner in an application made to the Tribunal in 2019. This lends weight to the applicant’s claim to have been in a relationship with that person. Having regard also to the applicant’s evidence at the hearing, I accept that that person was previously the applicant’s partner.
I have considered the evidence of the applicant and [Ms A], as well as the written evidence of the other witnesses. I note that, in addition to statements from family members, the witness evidence includes statements from a number of other people who know the applicant and [Ms A] in Australia and who have not commented on matters other than the relationship. I consider that the applicant and [Ms A] provided a credible and convincing account of the history of their relationship and the nature of their shared household. The documentary evidence, including the utility bill and other correspondence sent to the relevant address, lends further weight to their claims of having lived together. I accept that they have engaged in social activities together such as important celebrations and holidays. The applicant has provided photographs of a number of social activities and statements from a number of the witnesses also refer to their engagement in activities with others. I note that the marriage itself took place after the hearing invitation was issued. Notwithstanding the submissions about the date being auspicious, the timing of the marriage appears somewhat contrived and I would attach limited weight to this event in itself, although I do note that the available evidence (such as photographs and statements) indicates that the marriage was attended by a number of people. Similarly, the joint account commenced quite recently and is something to which I would attach limited weight in itself.
Nevertheless, having regard to the evidence in its entirety, I accept that the applicant and [Ms A] live together as a couple, that they are committed to each other and that they are recognised by family and friends as being in a relationship. I accept that the applicant lives openly in a relationship with a woman in Australia and previously had a relationship in Australia with another woman, a [Country] national.
While I note that the applicant was previously married to a man in Vietnam, I found to be credible and convincing the applicant’s account as to the realisation and experience of their sexual identity. I accept that Malaysia is a less accepting environment, as outlined in independent information discussed below. I accept in these circumstances that the applicant experienced uncertainty in relation to sexual identity but found additional freedom after coming to Australia and is able to live as what the applicant now describes as their ‘true self’. I accept that this evolution explains why the applicant did not refer to sexuality and gender identity in their claims to the Department.
I accept also that the applicant identifies as a man as claimed, and wishes to act like a man and wear men’s clothes. The applicant and [Ms A] gave consistent and convincing evidence in this regard. There is also some support for this in the witness evidence such as the statement from [Ms F]. I found the evidence overall about sexuality and gender identity to be convincing. The applicant’s presentation in the various photographs is also consistent with the claimed identity. Although the applicant did not explicitly describe their identity in this way, I accept that the applicant is in fact transgender and would be perceived as such by other people. I accept, however, that the applicant, as someone known as a woman in Vietnam, would also be perceived as lesbian. In this regard, I note the information from DFAT, referred to below, to the effect that any person in Vietnam who does not present as traditionally cisgender male or female may simply be seen as ‘gay’ or ‘queer’.
I have carefully considered the position for LGBTI (lesbian, gay, bisexual, transgender, and/or intersex) individuals in Vietnam. Independent information points to some improvements in terms of LGBTI rights in recent years, at least at the official level. The government has amended legislation to increase recognition of LGBTI rights and in 2013 removed consensual same-sex unions from the country’s list of forbidden relationships.[1] In 2015, Vietnam repealed a legal ban on same-sex marriage, although the government does not grant such unions legal recognition.[2]
[1] “My Teacher Said I Had a Disease”: Barriers to the Right to Education for LGBT Youth in Vietnam', Human Rights Watch (12 February 2020), p.1
[2] Freedom in the World 2023 - Vietnam, Freedom House (13 March 2023)
I note that, in its country information report of 11 January 2022, the Australian Department of Foreign Affairs and Trade (DFAT) pointed to a mixed environment with respect to LGBTI rights in Vietnam. It noted, for instance, that sex between adults of the same sex was legal, that LGBTI civil society organisations were relatively free in their operation, that LGBTI issues are not seen as particularly sensitive by the government and that pride events can generally go ahead without being registered. However, DFAT observed that, despite relative freedom from official interference, social stigma and discrimination against LGBTI individuals is common. It noted that 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. DFAT reported that the situation is better in large cities.[3]
[3] DFAT, DFAT Country Information Report Vietnam (11 January 2022) at p.24
DFAT observed that many families believe that LGBTI identity can be ‘cured’ and that LGBTI people may be forced by their families to attend conversion therapy. It stated that lesbians face particular pressure from families. DFAT reported being told by in-country sources 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.[4]
[4] DFAT, DFAT Country Information Report Vietnam (11 January 2022) at pp.24-25
DFAT reported that 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. While DFAT stated that ‘trans people can be found in other parts of the economy’, it indicated that many trans people work in the informal sector where discrimination means that the only work available might be in the entertainment industry. Further, trans people can experience discrimination when applying for, or working in, jobs. DFAT stated that these workers are not protected by anti-discrimination laws and may experience discrimination or a failure to recognise their gender identity.[5]
[5] DFAT, DFAT Country Information Report Vietnam (11 January 2022) at p.25
DFAT reported that ‘street violence’ against LGBTI people is uncommon and that violence is more likely to occur in domestic settings. DFAT assessed that LGBTI people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech. It stated that LGBTI people face a moderate risk of societal discrimination, particularly within their families. It also stated that LGBTI Vietnamese people do not enjoy day-to-day acceptance but are also unlikely to experience violence or overt discrimination in access to goods and services. I note, however, that DFAT observed that most LGBTI people, regardless of their wealth and identity, still hide their LGBTI identity in order to avoid discrimination.[6]
[6] DFAT, DFAT Country Information Report Vietnam (11 January 2022) at pp.24-25

When I discussed with the applicant at hearing information from the DFAT report, the applicant said their only thought was that, if they were allowed to stay here, they would live as a born again male. If they returned, they would not be able to do anything. The applicant would go back to their old self. When I put to the applicant that the information might seem to suggest that there was increasing recognition for LGBTI people, the applicant said that this would probably apply to big cities but not to regional areas.
I am conscious that, while the independent information points to some improvement in terms of recognition, DFAT describes the situation as ‘mixed’. This is reflected, for instance, in the observation that, despite relative freedom from official interference, social stigma and discrimination against LGBTI individuals is common. I note also that, while DFAT suggested that ‘street violence’ was uncommon and that LGBTI people were unlikely to experience ‘overt discrimination’ in access to goods and services, it indicated that most LGBTI people hide their identity in order to avoid discrimination.
Other sources also point to societal discrimination against LGBTI people as being a problem and as pervasive in Vietnam.[7] The US Department of State has reported that there is widespread social stigma and discrimination in Vietnam associated with being LGBTIQ+.[8] The available information indicates that the situation is particularly challenging for transgender people in Vietnam. For instance, it has been reported that almost 87 per cent of transgender men and 75 per cent of transgender women have had to change their physical appearance in ways that do not align with their identity.[9] A 2015 report from the Institute for Studies of Society, Economy and Environment observed that the transgender group had the highest rate of experiencing all discriminatory acts. It highlighted this as a problem in the context of the workplace. It reported that ‘trans guys’ were subjected to violence at the highest rate, although it noted that violence was mainly from acquaintances in schools, families or workplaces.[10] A 2016 report on livelihoods for transgender people in Vietnam observed that, because of traditional gender norms, transgender people in Vietnam face severe stigma and discrimination in public, in schools, at home and in the workplace.[11] It has been reported that transgender people are often refused employment due to stigma and discrimination and that legal documents do not reflect their chosen gender so they are easily identified as transgender by potential employers. Further, transgender people disproportionately suffer from exploitation, sexual assaults, and violence.[12]
[7] See, for instance, Freedom in the World 2023 - Vietnam, Freedom House (13 March 2023); USAID & UNDP, LGBT in Asia – Vietnam country report (August 2014) at p.38
[8] Country Reports on Human Rights Practices for 2022 - Vietnam, US Department of State (20 March 2023), Section 6
[9] It is time for Vietnam to walk the talk on trans rights, VNExpress (14 December 2021)
[10] Luong The Huy and Pham Quynh Phuong, Is it because I am LGBT?: Discriminations on Sexual Orientation and Gender Identity in Vietnam, The Institute for Studies of Society, Economy and Environment (2015) at pp.14, 15 & 18
[11] Hoang T-A and Oosterhoff, P, ‘Transgender at work. Livelihoods for transgender people in Vietnam’, Institute of Development Studies (February 2016) at pp.4, 15
[12] USAID & UNDP, Being LGBT in Asia – Vietnam country report (August 2014) at p.14
A 2014 report from the UNDP and USAID stated that stigma and discrimination towards LGBT people were common at the workplace. Transgender people in particular, because their gender identity and expression are often more physically visible, were subject to discrimination and rejection by potential employers. On the other hand, for LGBT people whose sexual orientation and gender identity and expression were not readily evident in their appearance, they were “safe” as long as they remained in the closet. Some of those brave enough to be open in the workplace were victimised by violence and discriminatory practices and eventually had to quit their jobs. The report referred to the lack of a viable livelihood as a real and valid concern for LGBT persons in Vietnam.[13]
[13] USAID & UNDP, Being LGBT in Asia – Vietnam country report (August 2014) at pp.20 & 43-44
I have carefully considered all of the available information. Having regard to s 5L of the Act and the independent country information referred to above, I am satisfied that transgender people constitute a particular social group in Vietnam. The characteristic of being transgender is shared by each member of the group, including the applicant. Having regard to the independent country information, I am satisfied that this characteristic distinguishes the group from society such that s 5L(c)(iii) applies. I would note also that the characteristic of being transgender is so fundamental to identity that members of the group should not be forced to renounce this characteristic. In these circumstances, s 5L(c)(ii) would also be applicable. The shared characteristic is not a fear of persecution. I am satisfied that the applicant is a member of the particular social group constituted by transgender people in Vietnam.
I have carefully considered the applicant’s circumstances in light of the available country information. As discussed above, I accept that the applicant wishes to act like a man and wear men’s clothes, and effectively identifies as a man. I accept that the applicant has displayed this identity openly in Australia and that it is apparent, for instance, in terms of clothing and appearance. I accept that the applicant would wish to behave in a similar manner in the event of returning to Vietnam. It was apparent from the applicant’s evidence at the hearing that being unable to display this identity openly was a particular concern. I accept that the applicant has had a relationship with two women in Australia, that they are currently in a committed relationship with [Ms A] and that they are open about their sexuality and identity in Australia. I accept that the applicant would wish to behave in a similar manner in the event of returning to Vietnam. The applicant has claimed that their mother and [sisters] are in Australia. The applicant has provided evidence that their mother and sister are Australian citizens. The applicant has provided a copy of [Ms A]’s passport and I accept on the available evidence that the applicant’s partner is an Australian citizen who lives in Brisbane. I accept on the evidence before me that, other than the applicant’s former husband and children, the applicant lacks family connections in Vietnam. While I have not accepted the applicant’s claims of mistreatment by their husband, I accept that the applicant is estranged from him and could not expect any support from him on return to Vietnam.
As noted above, while DFAT has reported that ‘street violence’ is uncommon and that LGBTI people are unlikely to experience ‘overt discrimination’ in access to goods and services, it has also indicated that most LGBTI people hide their identity in order to avoid discrimination. DFAT also reports that social stigma and discrimination against LGBTI individuals is common, and that LGBTI people report discrimination as a part of their everyday lives in areas such as healthcare, education and employment. With respect to transgender people, DFAT reports that they can experience discrimination when applying for, or working in, jobs. Further, these workers are not protected by anti-discrimination laws and may experience discrimination or a failure to recognise their gender identity. DFAT has also stated that 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. Other sources also point to pervasive discrimination against LGBTI people and indicate that the situation is particularly challenging for transgender people. The independent information indicates that transgender people experience the highest rates of discrimination, and that transgender men face the highest rates of violence. While DFAT has indicated that ‘street violence’ is not common, other sources refer to violence in places such as schools and workplaces. It is reported that transgender people are often refused employment due to stigma and discrimination, and that they disproportionately suffer from exploitation, sexual assaults, and violence. The UNDP and USAID report points to potential victimisation, including violence, directed at transgender people who are open about their identity in the workplace.
I note that DFAT has referred to particular pressure from families and to violence being more likely to occur in domestic settings. In the applicant’s case, it would appear that family members in Australia are supportive of the applicant’s relationship with [Ms A] and of the applicant’s expression of their identity. However, it is also the case that the applicant lacks family support in Vietnam and would be returning to the country after a very lengthy absence from the country. The applicant would be doing so without an established residence or recent employment history. In these circumstances, the impact of discrimination in contexts such as the workplace would be particularly acute for the applicant. I consider that, due to the lengthy absence from the country and lack of family support, the applicant would face increased vulnerability as a transgender person. I have found that the applicant would be seen by people in Vietnam as transgender and would be readily identifiable as such. The independent information indicates that transgender people in Vietnam experience discrimination and violence at higher rates than other LGBTI people. I accept that the applicant would also be perceived as a lesbian and that sexuality is a factor further increasing the risk to the applicant. In all the circumstances, I am satisfied that the applicant faces a real chance of experiencing severe societal stigma, significant and pervasive discrimination in relation to matters such as employment, and victimisation and/or violence (for instance, in the workplace) which, particularly when considered cumulatively and in light of the applicant’s circumstances, would constitute serious harm. I am satisfied that membership of the particular social group of transgender people in Vietnam would be the essential and significant reason for the persecution, and that the persecution involves systematic and discriminatory conduct.
I find that the real chance of persecution relates to all areas of Vietnam. While I note that DFAT has indicated that the situation is better in the larger cities, the independent evidence indicates that stigma and discrimination, particularly directed at transgender people, is widespread. Indeed, if the applicant were to seek to live in some other part of Vietnam, they would be likely to attract attention as a transgender person and would face the challenge of establishing themselves in a new place without family support. In these circumstances, the effects of stigma and discrimination would be particularly acute. Having regard to the independent information, I find that effective protection measures are not available. While there have been improvements in terms of LGBTI rights in Vietnam, such as removal of consensual same-sex relationships from the country’s list of forbidden relationships, it is also apparent from the independent information that there is a lack of appropriate laws to protect LGBTI people, and transgender people in particular, from discrimination in the workplace and other contexts.
Arguably, the risk to the applicant would be less if the applicant were to be less open about gender identity and sexuality than they have been in Australia. It is apparent from the independent information that most LGBTI people in Vietnam are not open about their sexuality and that many transgender people seek to conceal their identity in contexts such as the workplace. However, I accept that the applicant’s behaviour in Australia is a true reflection of the applicant’s identity. Requiring the applicant to modify their behaviour to conceal this identity or make it less obvious would both conflict with a characteristic that is fundamental to the applicant’s identity and involve concealment of the applicant’s true gender identity. In these circumstances, s 5J(3) is not applicable.
In making my findings, I have had regard to the applicant’s conduct in Australia. I accept that this reflects the applicant’s genuine gender identity and sexuality, and has been engaged in otherwise than for the purpose of strengthening the applicant’s claim to be a refugee.
In all the circumstances, I am satisfied that the applicant has a well-founded fear of persecution in Vietnam for reason of membership of the particular social group constituted by transgender people in Vietnam. I am satisfied that the applicant meets the definition of refugee in s 5H(1)(a).
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
On the available evidence, there is no suggestion that the applicant would have a right to enter and reside in any third country such that s 36(3) of the Act would apply.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Don Smyth
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2024] AATA 3164

27 March 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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