1817548 (Refugee)

This matter concerned a review of a delegate's decision to refuse to grant the applicant a protection visa. The applicant, who arrived in Australia in September 2013, applied for the visa on 8 November 2016. The delegate found that the applicant did not have a well-founded fear of persecution for one or more of the reasons specified in section 5J(1)(a) of the *Migration Act 1958* (Cth) and was not satisfied that there was a real risk of significant harm upon return to Vietnam under the complementary protection provisions.

The legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Act, specifically whether they were a refugee with a well-founded fear of persecution, or alternatively, whether they met the criteria for complementary protection under section 36(2)(aa) due to a real risk of significant harm upon removal to Vietnam. The court was required to assess the applicant's claims regarding debt collection threats, violence from a former husband, and their gender and sexuality, in light of country information and the credibility of the evidence presented.

The court considered the applicant's evidence concerning threats from debt collectors and vandalism in Vietnam, which were not accepted as grounds for protection. However, the court accepted the applicant's claims relating to their gender and sexuality, and their relationship with their former husband, including allegations of physical assault and threats, and the police's inaction. The court noted that the applicant now identifies as a man and that country information indicated mixed legal and societal acceptance alongside widespread discrimination and violence in Vietnam concerning gender and sexuality. The court applied the principles of assessing well-founded fear of persecution and significant harm, considering the credibility of the applicant's claims and the available country information.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*, indicating that the applicant was found to be a refugee.