1818946 (Refugee)

1818946 (Refugee) [2022] AATA 4145 (2 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818946
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Peter Katsambanis
DATE:2 September 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 September 2022 at 9:16am
CATCHWORDS
REFUGEE – protection visa – Vietnam – particular social group – homosexual – family disapproval – vague and inconsistent evidence – credibility issues – decision under review affirmed
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
FCS17 v MHA (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 16 June 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 17 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. This hearing was a joint hearing in relation to both the applicant’s matter and the matter of [Mr A], given that both matters related to the same fact circumstances. Both the applicant and [Mr A] agreed to the Tribunal conducting a joint hearing and agreed to the Tribunal using the evidence from the joint hearing in relation to their respective matters.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) 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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to Vietnam he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant lodged a valid application for a protection visa with the Department on 16 June 2016. The applicant was represented in relation to this application by a registered migration agent.
In his application for protection the applicant stated that he was born on [date] in Vietnam and claimed to be a de facto relationship. He stated that he was of Vietnamese ethnicity and atheist religion and listed his occupation as a student. He indicated that he lived at a residential address in [Suburb 1], Western Australia. His parents and brother were still residing in Hai Duong, Vietnam. He stated that he had arrived in Australia [in] January 2015 on a valid Australian student visa and a validly issued Vietnamese passport. He indicated that he had returned to Vietnam from [January] 2016 to [February] 2016 to visit his family.
The applicant claimed that he had lived at the same residential address in [Cam Giang District], Hai Dung from birth until he departed Vietnam in January 2015. He stated that he had lived at a residential address in [Suburb 2], Western Australia from January 2015 until March 2016 and then at a residential address in [Suburb 1], Western Australia from March 2016 onwards.
The applicant stated that he had never worked in Vietnam but had worked at part time as a [occupation] from September 2015 onwards. He indicated that he had completed high school in Vietnam. In Australia he had completed an English language course at [College 1] and was currently studying a [Diploma] at [College 2] in Western Australia.
The applicant stated that he was seeking protection in Australia so that he did not have to return to Vietnam and referred to his attached statement in relation to his claims.
In a statutory declaration that was declared by the applicant on 4 May 2016 and submitted with his protection visa application, the applicant listed a residential address in [Suburb 1], Western Australia as being his residential address and claimed that he was claiming persecution on the basis of belonging to a particular social group being a homosexual. He claimed that he was also relying on complementary protection for assessment of his claims.
The applicant stated that he was currently in a gay relationship with [Mr A]. He and his partner were both applying for protection on the basis of their sexual orientation. He stated that he was not religious and that he was an international student. He confirmed that since he arrived in Australia in January 2015, he has returned to Vietnam on one occasion.
The applicant stated that his parents and brother continued to reside in Vietnam, but he had close relatives in Australia.
The applicant claimed that he first came to realise that he was homosexual at approximately the age of 16. Throughout the period he lived in Vietnam he remained a closet gay, but he added that he had been in a gay relationship with his current partner since March 2014.
In his statutory declaration, the applicant stated that he and his partner decided to travel to Australia where they could pursue their education and live in a free and tolerant society. The applicant arrived in Australia approximately three months prior to his partner and they had been living together at the address listed on the statutory declaration since early March this year (2016). Prior to that, the applicant claimed that he had been living with his relatives as his parents had demanded.
The applicant stated that his parents were still not aware of the fact that he was a homosexual. He did not have the courage to inform them, and he feared their reaction because homosexuality was regarded as shameful in his culture. He stated that many homosexual individuals have committed suicide rather than openly come out. He claimed that he had also contemplated suicide on many occasions.
The applicant stated that he feared returning to Vietnam on the basis of being persecuted by family, relatives, society in general and the Vietnamese authorities. He claimed that his family, relatives and society in general would not accept him as a homosexual or his homosexual relationship. He feared being harmed by his father or other close relatives if he confessed that he was a gay man.
The applicant claimed that severe discrimination towards homosexuals remains widespread in Vietnam and stated that there was entrenched rejection and rejection of homosexuality in many facets of society including employment, health care, education and law enforcement. He claimed that the Vietnamese authorities remained apathetic towards the plight of openly gay men and women. Such attitudes endanger personal safety as he would be unable to rely upon them for personal protection when confronted with hostility.
The applicant claimed that the Vietnamese authorities continue to mistreat openly gay individuals and do not take any positive action to protect them from potential harm. He claimed that he and his partner feared that if they bring the threats or actual physical violence to their attention that they too may harm them, rather than protecting them. He stated that not having the effective protection of the Vietnamese authorities meant that their only lifestyle choice was to remain closet gays in order to avoid potential physical harm and discrimination. He claimed that his inability to live openly as a gay man and maintain homosexual relationships without being subjected to threats, actual physical harm and severe discrimination amounted to a breach of his fundamental human rights.
The applicant stated that after he completed his tertiary education, he would be required to undertake compulsory military service, however homosexuality is not tolerated in the Vietnamese military and therefore he cannot come out as an open gay man. He claimed that during the period of compulsory military service, he would have to conceal his true sexual orientation or face the risk of severe punishment, including torture and detention. He stated that there were no other alternative to compulsory military service in Vietnam.
The applicant claimed that he did not apply for a protection Visa earlier because he and his partner were unaware that their sexual orientation was a ground for applying for refugee status. They had also feared that after lodgement of an application for refugee status, the Vietnamese authorities may be informed, and this may potentially jeopardise the security of their relatives back home.
The applicant also provided the Department with a copy of his Vietnamese passport.
The delegate refused to grant the applicant a protection visa on 15 June 2018.
Application for Review
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 June 2018. The applicant also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
Over time, the applicant was represented in relation to the review by three separate registered migration agents but was no longer represented by the time he attended the Tribunal hearing.
Tribunal Hearing
At the commencement of the Tribunal hearing both the applicant and his partner, [Mr A], confirmed that they agreed to the Tribunal holding a joint hearing in relation to their separate but inter-related applications for protection. They further agreed that the Tribunal could use the evidence they both provided at the hearing in relation to both their own application for protection and in relation to the application of their partner.
Both parties also confirmed to the Tribunal that although they had previously been represented in relation to their application by registered migration agents, they were no longer represented.
The parties agreed that the applicant would be the first person to give evidence to the Tribunal, and the parties’ evidence is set out below in the order it was received at the joint hearing.
Evidence of the applicant
The applicant confirmed his date and place of birth and stated that his parents were still alive and living in Vietnam. His father operated a business which the applicant described as a [shop] in Cam Giang, Hai Duong, and his mother was an [occupation]. He claimed that his [age]-year-old brother lived at home with his parents.
The applicant stated that he finished year 12 in Vietnam at the high school in Cam Giang. After he graduated from high school, he did not work in Vietnam but had come to Australia to continue his studies.
The Tribunal asked the applicant if he had experienced any problems in Vietnam before he came to Australia. The applicant stated that there was an issue. He claimed that when he told his parents that he was homosexual they did not agree and were not happy about it. The applicant claimed that he told his parents that he was homosexual around the time when he was graduating from year 12. He claimed that in response his parents told him that he was not allowed to be homosexual. He indicated that apart from this issue, he had not experienced any other problems in the past in Vietnam.
The applicant stated that he came to Australia in early 2015 and had initially studied English before undertaking one semester of study at [College 2] in Perth. He indicated that he had not undertaken any other studies in Australia. When asked why he had stopped studying in Australia, the applicant responded that it was because he and his partner had both applied for protection visas. When asked if he believed that once he had applied for protection he didn’t need to study anymore, the applicant agreed that this was the case. The applicant stated that his parents had funded him to come to Australia to study.
The applicant indicated that he did not work in Australia and claimed that he survived with money that his father sent him from Vietnam and with money that was given to him by his partner. He added that he did not have work rights on his bridging visa in Australia but that his partner did have work rights. When asked what his partner did for a living, the applicant stated that his partner worked in a Vietnamese [shop] in [Suburb 2].
The applicant confirmed that he was living in Australia with his partner. When asked who else lived in the house that they lived in, the applicant stated that the landlord also lived there and confirmed that this landlord was of Vietnamese origin. The applicant claimed that he did not know the name of the landlord because the landlord never talked to him. When asked how long he had lived in this property, the applicant stated that he had lived there for several months. He claimed that he used to live in [Suburb 1] but had now moved to [Suburb 2]. When asked when he had moved to [Suburb 2], the applicant initially stated that he did not know and then claimed that it was maybe three or four months ago. The Tribunal asked the applicant why he did not know the name of his landlord given that he had been living with the landlord for 3 or 4 months. The applicant responded that it was because the landlord did not like him and did not talk to him.
The applicant was asked what his fears were about returning to Vietnam. He responded that he had told his parents he was homosexual and not only his parents, but also his relatives were aware about this fact and were not happy about it. He claimed that if he went back home, his mother may commit suicide.
The applicant confirmed that he was in a relationship with his partner, [Mr A], and stated that the relationship started in March 2016. When asked if he had commenced this relationship with his partner in Australia or Vietnam, the applicant stated that it was actually in March 2017 in Australia.
The Tribunal pointed out to the applicant that the date of commencement of their relationship could be important in determining his claims for protection and asked the applicant to clarify whether he was claiming that the relationship began in March 2016 or in March 2017. In response, the applicant stated that the relationship started in 2016 but they only started living with each other in March 2017. He again confirmed his statement that the relationship had started in Australia and he had not been in a relationship with his partner in Vietnam prior to coming to Australia.
When asked where he had been living in Australia before March 2017, the applicant stated that he had rented a room and lived alone by himself in [Suburb 2].
The Tribunal then asked the applicant a series of questions about his partner. The applicant stated that his partner had one elder brother who lived in Vietnam, but he did not know exactly where in Vietnam this brother was living. He claimed that his partner’s parents were living in Cam Giang in Vietnam. He stated that his partner’s parents were farmers and they also worked in a factory. He confirmed that both of the parents did this work.

When asked who else knew about the relationship between him and his partner, the applicant stated that only a few of his friends knew because he didn’t want to talk about his relationship. When asked why he did not want to talk about his relationship, the applicant responded that he only told close friends because people in Vietnam did not like homosexuals. When it was pointed out to the applicant that he was now in Australia and again asked why he would not tell his friends in Australia about his relationship, the applicant responded that he did not have a lot of friends in Australia to talk to.
The Tribunal asked the applicant if he had any evidence or information to submit to the Tribunal to verify that he and his partner were actually living together as a couple. He responded that the couple used to have a joint bank account, but they spent money independently and were financially independent so although they had a joint bank account they did not use it. When asked if they still had this joint bank account, the applicant stated that he had lost the account.
When asked whether he could obtain any statements from friends or relatives that the couple were in a genuine relationship, the applicant responded that he could not do so.
The Tribunal pointed out to the applicant that it had credibility concerns about the contradictions between the evidence that he had provided to the Department and the evidence he had provided at the Tribunal hearing. The applicant confirmed the claim he had made earlier in the Tribunal hearing that he had been living in [Suburb 2] when he arrived in Australia and only moved to [Suburb 1] in March 2017. It was pointed out to the applicant that in the statutory declaration signed by him on 4 May 2016 and provided to the Department in support of his protection visa application he had stated that he was living at a residential address in [Suburb 1] at the time the statutory declaration was signed. The Tribunal pointed out to the applicant that this contradictory evidence over time may indicate that he had not been a witness of truth in relation to the claims made in his statutory declaration. In response, the applicant stated that it had been a long time and he could not remember exactly. He then added that it could have been 2016 or 2017.
The Tribunal pointed out to the applicant that in the same statutory declaration he had claimed that he had been in a relationship with his partner since March 2014 when they were still living in Vietnam. However, at the Tribunal hearing he had claimed that the relationship had only commenced when they were both in Australia around March 2016. The applicant was asked to explain the contradictory nature of this evidence over time. He responded that when they were in high school, they only had a friendship and had not commenced a relationship yet. When asked by the Tribunal why he would claim in his statutory declaration that he had been in a relationship with his partner since March 2014 if this was not true, the applicant stated that he must have misunderstood the question and he had probably thought they had asked him when he had first known his partner. The Tribunal asked the applicant who had asked him such a question, and he responded that it was his solicitor in Sydney who had filed his original application for protection. The Tribunal pointed out to the applicant that he had signed the statutory declaration as being true and correct, and asked the applicant why he was now blaming his solicitor for this incorrect information. He responded that at that point in time he did not understand a lot of English. The Tribunal pointed out to the applicant that solicitors were under a legal obligation to act in the best interests of the client, and it would be unlikely and unprofessional for a solicitor to make up a claim if that information had not been provided to them by their client. In response, the applicant stated that at that point in time he and his partner did not understand much English and they signed the document even though they had no idea what it said. He added that they were only told they needed to do this in order to make an application.
The applicant confirmed his evidence earlier in the hearing that he had told his parents that he was a homosexual before he had left Vietnam. When asked why he had stated in the statutory declaration that he had provided to the Department that he had not told his parents that he was homosexual and they were not aware of his homosexuality, the applicant stated that at the time he made the statutory declaration he thought that such a statement would be good for his application. When asked if he was now claiming that at the time he signed his statutory declaration he believed that telling lies would assist his application, the applicant repeated that at the time he did not understand much English and just wanted to get the matter over and done with quickly. When again asked why he would submit something to the Department that he was now stating was not true, the applicant replied that because at that time when the solicitor asked him, he simply nodded his head and did not tell him much.
The Tribunal asked the applicant why his parents would fund his studies in Australia and continue to send money to support him in Australia since his arrival in 2015 if they were upset with his homosexuality. The applicant responded that his mother was not happy at all and his father was not happy, but the father still wanted to help him financially and look after him.
The Tribunal pointed out to the applicant that the direct contradictions in the evidence provided in his statutory declaration to the Department and the evidence he had provided to the Tribunal at the hearing relating to his claims, as discussed at the hearing, raised concerns about whether he had been a witness of truth in relation to his claims. The applicant responded that he did not know how to convince the Tribunal. He added that when he did his application, they just wanted to get it over and done with.
Evidence of [Mr A]
[Mr A] confirmed his date and place of birth and stated that his parents were still alive and living in Vietnam. He claimed that his parents did not work in Vietnam but stayed at home and cared for his brother’s son. He claimed that in the past his parents had worked on a farm and clarified that this farm was a fish farm. He stated that his brother was around [age] years old and was currently living in Japan, however his brother’s wife and his brother’s son were still living in Vietnam.
[Mr A] stated that he had finished high school in Vietnam. He clarified that his parents were divorced, and he had been living with his mother in Vietnam because his father had commenced a new relationship and did not care about his original family. He also clarified that it was his mother who stayed at home to look after his brother’s son. He indicated that although they were divorced, his parents both still lived in Cam Giang.
The Tribunal asked [Mr A] why he came to Australia. He responded that he loved Australia and had a lot of friends here and also had some relatives in Sydney. He added that he came to Australia to study. He claimed that he had studied English for a year in Australia and had then completed a [Diploma] for three years at [College 2]. He could not recall the exact date he had finished studying but claimed it was around 2019.
[Mr A] stated that he worked as a [Occupation 1] in Australia. He added that he would [work at] three [premises] in three separate suburbs of Perth. One of these [premises] was located inside a shopping centre and the other two were located just outside a shopping centre.[details deleted]
[Mr A] claimed that he lived in [Suburb 2]. He stated that he had previously been living in [Suburb 1] but had moved to [Suburb 2] and had lived at the same place in that suburb for almost 2 years. When asked how many other people lived at this property, he initially stated that there were some guys and some girls who lived there. He then clarified that there were four men and one girl living there apart from him and his partner. He added that one of the people who lived there was an older man who owned the property. [Mr A] claimed that his partner, the applicant, had lived at this property in [Suburb 2] for the same period that he had been living there and again stated that they had moved there around two years ago.
The Tribunal asked [Mr A] how long he had been in a relationship with his partner. He stated that they had known each other in Vietnam from around 2014. He claimed they had both come to Australia around 2015 and they had lived together from either 2016 or 2017. The Tribunal asked [Mr A] to clarify when the couple had actually commenced their relationship. He responded that it was from when they started living together in either 2016 or 2017 and confirmed that the relationship had only started after they had both arrived in Australia.
When asked what he feared about returning to Vietnam, [Mr A] stated that he could not go back because he would have a big problem with his mother. His mother and other people in Vietnam did not like homosexual relationships and he was scared that if he went back to Vietnam, they might kill him and his partner. He added that his biggest problem was with his mother. When asked if his parents knew he was in a homosexual relationship, he indicated that they did not know and if they came to know they would be shocked.
The Tribunal asked [Mr A] whether he had any evidence or information that he could submit to the Tribunal to indicate that he was in a genuine relationship with his partner. He stated that they had sent some pictures to the Department a long time ago but after that period of time they had not taken any pictures at all. When it was pointed out to him that it would appear unusual that a couple who had been together for over six years did not have any photographs together, [Mr A] stated that only his partner had taken photos.
When asked if there were any friends or other people who could verify that the couple were in a genuine relationship together, [Mr A] stated that he had a few friends, but they had moved to Sydney or Melbourne. He added that he did not have many friends here. When asked if he could obtain any statements from the people that he was living with in the property in [Suburb 2], he stated that he did not talk to them much. He also stated that their house mates did not know that the couple were in a homosexual relationship.
The Tribunal asked [Mr A] why he would not reveal that he was in a homosexual relationship with his partner to the people that they were living with. He responded that he did not want to tell them, and he wanted to keep it a secret. The Tribunal asked [Mr A] if the reason why the couple would not tell their house mates that they were in a relationship was because they were not in a genuine homosexual relationship but were making these claims solely for the purposes of obtaining a visa to stay in Australia. [Mr A] responded that this was not the case and added that in their community homosexuals were not popular so they would be teased, and people would talk behind their backs. Therefore, they wanted to keep their relationship a secret.
[Mr A] confirmed that he had known the applicant from around 2014 when they were both in Vietnam. He stated that the applicant had come to Australia a few months after he had arrived here. He also stated that their relationship had commenced around 2016 or 2017.
The Tribunal pointed out to [Mr A] that the year in which the relationship commenced may be relevant to the couple’s claims for protection and asked him to clarify in which year the relationship commenced. He responded that it was in 2017 and confirmed that in Vietnam the couple had only been friends but were never in a homosexual relationship.
The Tribunal then asked [Mr A] a series of questions about the applicant. He stated that the applicant’s parents were still alive and living in the same place in Vietnam where his own mother lived. He stated that he knew the applicant’s mother was a [occupation], but he did not know what work his father did. He indicated that the applicant had one younger brother, who he believed was still in high school.
The Tribunal asked [Mr A] if his partner, the applicant, worked in Australia. He responded that the applicant worked in a [Business 1].
The Tribunal pointed out to [Mr A] that it would like to discuss some concerns about the evidence he had provided to the Department and to the Tribunal over time.
The Tribunal asked [Mr A] why he had applied for a visa in 2016 on the basis that he was in a homosexual relationship with the applicant at the time of application but at the hearing he had stated that the relationship commenced in 2017. He responded that he had told the Tribunal that it was either in 2016 or 2017.
The Tribunal pointed out to [Mr A] that this evidence he had provided to the Tribunal contradicted the claim that he made in his statutory declaration signed on 4 May 2016 and provided to the Department, in which he claimed that the couple had commenced a relationship in Vietnam in 2014. [Mr A] responded that he knew the applicant in 2014 but they had started their relationship in 2016 or 2017.
The Tribunal asked [Mr A] why he would make the statement that the relationship had commenced in March 2014 in his statutory declaration if it was not true. He responded that they had only started to live together in 2016 but they wanted to show that the relationship had been in existence for a very long time, which is why they had stated it had started in 2014.
[Mr A] confirmed to the Tribunal that it was now his evidence that the couple had not been in a relationship from 2014. When asked why he would make a claim in his statutory declaration that the relationship had been in existence from 2014 if he knew this was not true, [Mr A] responded that he wanted the Department to believe they had been in a long relationship from 2014.
In response to this statement by [Mr A], the Tribunal asked him to clarify that he was now submitting that he had lied in his statutory declaration to the Department to enhance his claims for protection. He responded that everything was true, but he wanted to exaggerate the time from when the relationship had commenced.
The Tribunal asked [Mr A] how long he had lived together with his partner. He stated that it was from around 2016 or 2017 until the present time. He added that they had previously lived in [Suburb 1] but were now living in [Suburb 2]. The Tribunal asked [Mr A] why his partner, the applicant, would not be aware of the actual work that [Mr A] did for a living if they had been living in a committed relationship together for six years. [Mr A] responded that he did not know what his partner had told the Tribunal. He then asked whether his partner had told the Tribunal that they were living separately. The Tribunal responded that his partner had claimed that [Mr A] was working in a Vietnamese [shop] in [Suburb 2] and did not appear to know that [Mr A] was actually working as a [Occupation 1]. In response, [Mr A] stated that he may have done this in Vietnam and then added that there was a [shop] inside so maybe his partner thought the shop he worked at was a [shop].
The Tribunal asked [Mr A] if his partner really did work in a [Business 1]. He responded that yes, he did. The Tribunal asked [Mr A] why his partner would tell the Tribunal in his own evidence that he did not work in Australia if he was actually working in a [Business 1]. [Mr A] responded that before he just knew his partner and he had told him that he worked in a [Business 1]. He added that maybe his partner had quit and stayed at home.
The Tribunal pointed out to [Mr A] that it would expect him to know if his partner had quit his employment if they were genuinely living together as a couple and asked him if they were really living together as claimed. [Mr A] responded that they were living together.
The Tribunal pointed out to [Mr A] that although he had told the Tribunal that they had been living together at the property in [Suburb 2] for around two years, his partner had told the Tribunal that they had only been living there for a few months. [Mr A] responded that maybe he had moved first and then his partner had moved in later. It was pointed out to [Mr A] that earlier in the hearing he had told the Tribunal that the couple had both been living together in [Suburb 2] for around two years. He responded that he had moved first and then his partner had moved later. When asked how much later his partner had moved to the property in [Suburb 2], he responded that maybe it was a few months or half a year later.
The Tribunal asked [Mr A] why his partner would tell the Tribunal that only one other person was living at the house with the couple, in direct contradiction of [Mr A]’s statement that a number of people had been living at the property with them. In response, [Mr A] asked the Tribunal if it could call his partner into the hearing room so that they could talk together to the Tribunal to save time.
The Tribunal asked [Mr A] if there was anything he wished to add to his evidence before the Tribunal called in his partner. He responded that he had nothing that he wanted to add.
Further evidence at hearing
When the applicant and [Mr A] had both returned to the hearing room, the Tribunal asked them if there was anything they wanted to add to their evidence. The applicant responded that he wanted to know when they would receive a decision about their cases. The Tribunal asked both parties if there were any other documents or evidence that they wish to send the Tribunal before it made its decision on their matters. The applicant responded that he wanted to send more papers to the Tribunal, and it was agreed that he would provide any further documents or other evidence by Friday, 19 August 2022.
Both parties indicated they had no further statements they wish to make, and the hearing was concluded on this basis.
At the time of making this decision, the Tribunal has not received any further submission or documents from the applicant or his claimed partner.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity. The applicant arrived in Australia on a valid Vietnamese passport bearing a valid Australian student visa. The Tribunal therefore accepts that the applicant is a national of Vietnam and has assessed his claims accordingly.
The applicant claims to be a homosexual man and further claims to be in a long-term homosexual relationship with his claimed partner, [Mr A]. The applicant claims that he fears serious harm if he returns to Vietnam now or in the reasonably foreseeable future for reasons of his homosexuality generally and because he is in a homosexual relationship with [Mr A].
However, over time, the applicant has provided contradictory and vague evidence to the Department and the Tribunal about his homosexuality and about his relationship with his claimed partner.
In his statutory declaration dated 4 May 2016, which was provided to the Department along with his application for protection, the applicant claimed that he commenced his relationship with his claimed partner in 2014 in Vietnam. However, at the Tribunal hearing, the applicant provided direct evidence that although he knew his claimed partner in Vietnam, they were only friends at the time and did not commence their relationship until they both came to Australia.
When asked at the hearing to explain this contradiction, the applicant variously claimed that he may have misunderstood the question at the time he made his statutory declaration, attempted to blame any mistake on his solicitor at the time who completed the protection visa application on his behalf, and also claimed he did not know much English at that time. The Tribunal does not accept these explanations because as discussed with the applicant at the hearing, solicitors have a duty to act in the best interests of their clients and there is no evidence that the solicitor misrepresented the applicant’s instructions. In addition, despite any problems with English or any misunderstanding, the commencement of a personal relationship is an integral fact that an applicant ought to be aware of from personal knowledge and be able to provide consistent details about it over time.

Accordingly, the Tribunal finds that, based on this contradictory evidence provided by the applicant over time, the applicant has not been a witness of truth in relation to when his claimed relationship with [Mr A] commenced and the Tribunal further findings that the applicant’s claims in this regard lack credibility.
The applicant has also provided contradictory evidence over time about when he first told his parents about being homosexual. At the Tribunal hearing he clearly stated that he had told his parents he was a homosexual around the time he was completing year 12, which was before he had left Vietnam to come to Australia. He added that his parents were not happy when he told them. However, in his statutory declaration of 4 May 2016, the applicant stated that his parents were still not aware that he was homosexual, that he did not have the courage to tell them and that he feared their reaction. When asked to explain this direct contradiction at the hearing, the applicant stated at the time he made the statutory declaration he thought that such a statement would be good for his application. The Tribunal accepts this statement as an admission by the applicant that he was prepared to make a false statement in order to advance his claims for protection.
On the basis of the applicant’s admission that he was prepared to make a false statement about the knowledge of his parents to advance his claims for protection, the Tribunal finds that the applicant has not been a witness of truth in relation to whether his parents were aware of his homosexuality and further finds that his evidence in this regard lacks credibility.
The applicant has also provided contradictory evidence over time about when he started to live together with [Mr A]. At the Tribunal hearing, the applicant stated that although the couple commenced their relationship around March 2016, they did not begin living together in a property in the suburb of [Suburb 1] until around March 2017. The applicant further stated that he had lived in a property in the suburb of [Suburb 2] until 2017. However, in his statutory declaration dated 4 May 2016, the applicant claimed to be living at the residential address in [Suburb 1] at the time of making the declaration and further claimed that the couple had been living together at this address in [Suburb 1] since March 2016.
When the Tribunal asked the applicant at the hearing to explain this contradictory evidence over time, the applicant stated that it had been a long time and he could not recall whether it was in 2016 or 2017 when he had first started living with his claimed partner. The Tribunal does not accept this explanation as the commencement of living together in a relationship is a basic fact that an applicant would be expected to provide consistent evidence over time.
Accordingly, based on this contradictory evidence provided by the applicant over time, the Tribunal finds that the applicant has not been a witness of truth over time and his evidence in relation to when he commenced living together with his claimed partner lacks credibility.
The Tribunal has considered the claims made by the applicant that he is a homosexual and in a committed relationship with [Mr A] and has considered the evidence at the hearing that indicated he had some knowledge about his claimed partner’s background and family that would be consistent with the couple being in a committed relationship. The Tribunal has also considered the witness evidence of [Mr A] stating that the couple were in a committed relationship and also providing some evidence about the applicant’s background and family that would be consistent with the couple being in a committed relationship.

100. However, the Tribunal finds that this evidence supporting the applicant’s claims to being homosexual and being in a homosexual relationship with his claimed partner is far outweighed by the contradictory evidence provided by the applicant over time lacking in credibility about when the applicant commenced the relationship with his partner, whether the applicant’s parents were ever aware that he was homosexual and when the applicant and his claimed partner commenced living together.
101. Based on all of the above, the Tribunal finds that the applicant is not and has never been a homosexual and the Tribunal further finds that the applicant has never been in a homosexual relationship with [Mr A] as claimed.
102. The applicant claims that if he returned to Vietnam now or in the reasonably foreseeable future, he fears serious harm on the basis of his actual or perceived homosexuality and on the basis of being in a homosexual relationship with [Mr A]. He has further claimed that if he was to return to Vietnam he would have to live as a closet gay and not reveal his homosexuality in order to avoid the serious harm that he fears.
103. However, the Tribunal has found that the applicant is not and has never been a homosexual and has also found that the applicant has never been in a homosexual relationship with [Mr A] as claimed. Based on these findings, the Tribunal finds that if the applicant was to return to Vietnam now or in the reasonably foreseeable future he would not be perceived as being homosexual and the Tribunal further finds that he would not need to conceal his claimed homosexuality.
104. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant was to return to Vietnam now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm amounting to persecution for reasons of being or being perceived to be a homosexual or for reasons of being in a homosexual relationship with [Mr A] or for reasons of having to conceal his claimed homosexuality.
105. Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
106. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the primary applicant will suffer significant harm as defined in Section 36(2A) of the Act.

108. As outlined above, the Tribunal has found that the applicant is not and has never been a homosexual and has also found that the applicant has never been in a homosexual relationship with [Mr A] as claimed. Apart from these claims about his alleged homosexuality and his alleged homosexual relationship with [Mr A], the applicant has not made any claims that he fears harm for any other reason in Vietnam and no further claims arise on the facts before the Tribunal.
109. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to Vietnam. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
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.
…

[2022] AATA 4145

2 September 2022

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