1907452 (Refugee)

1907452 (Refugee) [2023] AATA 1296 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Hoang
CASE NUMBER:  1907452 & 2101529
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Nora Lamont
DATE:21 February 2023
PLACE OF DECISION:  Brisbane

DECISION: The Tribunal remits the following matters for reconsideration:
a.Matter 1907452 Safe Haven Enterprise visa application made on
5 October 2016 with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act; and
b.Matter 2101529 Safe Haven Enterprise visa application made on
31 October 2020 with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.

Statement made on 21 February 2023 at 1:23pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – homosexual – political opinion – attended two political rallies in Australia – lack of documentation – left country via boat – failed asylum seeker – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 65, 411
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
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 21 August 2017 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 5 October 2016.
The applicant appeared before the Tribunal on 16 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The applicant’s representative appeared via video from NSW.
There are no non-disclosure certificates on the applicant’s file.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was re-notified of their Part 7 review rights by the Department on 14 March 2019 and made a valid application for review within the prescribed period.
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.
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.
Mandatory considerations
Claims
The applicant’s claims across his two applications can be summarised as follows:
·His father died when he was [age] years old, and his mother left him and his two brothers two years later and she took all the documents with her.
·The government forced them out of their house because they could not provide proof of ownership.
·His older brothers worked to support him.
·He suffered discrimination through being accused of being a homosexual.
·He participated in two anti-government demonstrations in Australia.
·He cannot return to Vietnam as a failed asylum seeker and for his political opinion.
Tribunal Hearing
The applicant was born in [District 1] Bin Thuan Province and is Catholic. He has [number] older brothers who he travelled with to Australia in 2013. He was [age] years old when he arrived and is now only [age] years old. His eldest brother is being held in a detention centre in Perth and he lives up the street from his other brother. He works casual as a [Occupation 1] and his brother works as a [Occupation 2].
I asked him to tell me about when he left Vietnam and he said his brother took him from the village to come to Australia. He said his mother left when he was [age] years old and took all the documents with her. He said he was confused as to why she left and didn’t come back.
The government demanded to see the paperwork for the house, but they couldn’t prove that they lived there so the government took their house and land and they had to move in with the neighbours. The neighbours were an elderly couple and they looked after him. He stayed with the neighbours for around twelve months before coming to Australia. The applicant remained in school and his brothers worked to support him.
He said when the government came to take the house and land, they beat up his older brother and he was very afraid. He said his oldest brother worked as a [Occupation 3] and the other brother went to the city to work. He only saw his brothers every few months.
I asked him about being a homosexual and he said that when he left Vietnam, he was almost

[age] years old and at school they called him a ‘lady boy’ which is a half woman and half man. He said even adults outside of school teased him. He said he was pushed around at school, and they just saw him as someone to tease. They didn’t understand he was a person with feelings.

I asked him if he ever spoke to his mother about it and he said he didn’t dare. I asked if his brothers knew he was homosexual and he said they accepted him. He was concerned about having to return to Vietnam as he knew of a few families who forced their homosexual children to get married and at school they don’t talk about it, and they say bad things about homosexuals.
The applicant said he had a normal life here and people don’t say anything to him about being homosexual. He said they have laws to protect you here in Australia. He also said he was not in any relationship at this time.
The applicant said they are just a family of three and they cannot stand up to the community.
The applicant said he attended mass as a Catholic in Vietnam, and he attends [Church 1] in [Suburb 1] here as well. I asked if the church in Vietnam had helped him, and his brothers and he said they did not. He speculated that it may have been because they were afraid of the government. He said there is a big difference between the church here in Australia and the church in Vietnam.
The applicant said he went to see a psychologist once as he has a fear of going back to Vietnam and his biggest fear is returning and being discriminated against and he needs protection.
I asked him why he attended political rallies? He said I know a lot more about the community here and I want to show the Vietnamese community what it is about. He said the government should teach and seek human rights and he wants human rights for his family; they took his house and land. He went in 2014 with the Vietnamese community and a rally in 2018 to make the fall of Saigon and another four rallies where he held a banner and an old Vietnamese flag. He said the name of the group is Vietnamese Community Australia (VCA).
I told him that in my files it said in 2017 he said he wasn’t gay and then after your case was refused then you said you were gay. He said he said he wasn’t as he lacks in confidence, and he only decided to say he was gay after he saw a psychologist.
I asked him about the Vietnamese authorities coming to the detention centre. He said some of the Vietnamese guys in detention refused to eat, so they brought in some Vietnamese people, but they didn’t come to see him. I asked him why he went to a Chinese rally, and he said he doesn’t support the Chinese and they oppress people, like the Ughers and Tibetans.
The applicant said he was afraid if he went back to Vietnam he would be put in jail, beaten and die. He said his political opinion and his attendance at rallies scared him the most. He has no household registration, no family, nowhere to live.
Country Information
Political Opinion (Actual or Imputed)
3.46 As noted in Political System, Article 4 of the Constitution establishes the CPV as the only legal political party in the country. The CPV tightly controls political discourse, and there are very few formal avenues for political participation for non-members. The structure of Vietnamese society strongly favours those with CPV ties. After the Vietnam War, trusted CPV members and their families were awarded with prime positions, while Vietnamese previously allied to the US were punished and their children denied opportunities. The importance of CPV membership and loyalty for social and professional advancement endures in current Vietnam. For example, the CPV continues to prohibit membership if one’s parents (or those of a spouse) worked in the Saigon government or ‘armed forces of the enemy.’ Around three-quarters of the current government’s cabinet is from northern Vietnam, with the remainder from the southern and central provinces. The increasingly important private sector, however, is creating alternative pathways to social and professional advancement for non-party members.
3.47 Opposition political parties are typically based outside of Vietnam to avoid harassment, arrest and detention. The Vietnam Reform Revolutionary Party (known as Viet Tan) is a

US-based opposition group (also with an active branch in Australia) which advocates for democracy in Vietnam. It is considered a terrorist organisation by the Vietnam government. Members of other foreign-based opposition groups, such as the Brotherhood for Democracy, have also been accused of carrying out activities aimed at overthrowing the government. The Brotherhood for Democracy is reported to have funding links to Viet Tan (see Political Activists).
3.48 Vietnam has made some steps towards greater openness and transparency, and authorities have tolerated criticism of government in some instances. There are limits to dissent, however, and no signs that the CPV is willing to loosen its monopoly on power. Individuals can incur long prison terms for breaching broad national security provisions. A range of high-profile arrests and trials over the recent years have attracted international criticism of Vietnam's one-party political system and its management of freedom of expression of political views and human rights (see Political Activists and Media).
3.49 The Constitution enshrines rights with regard to freedom of speech, assembly, association and demonstration. These rights are restricted, however, by a number of ‘national security’ provisions within the Penal Code, namely: Article 109 (‘overthrowing the State’); Article 117 (‘conducting propaganda against the State’); and Article 331 (‘abusing rights to democracy and freedom to infringe upon the interests of the State’). These provisions take precedence over constitutionally enshrined rights in practice and are commonly applied to activists. The penalties mandated by the provisions remain unchanged, ranging from prison sentences of between six months and 20 years, to life imprisonment or capital punishment (see Death Penalty). Official approval is required for all public gatherings, and authorities routinely deny permission for meetings or marches considered politically sensitive. Police and other security authorities routinely use excessive force to disperse unauthorised demonstrations (see Police).
3.50 Despite legal restrictions and often-severe responses from authorities, citizens do continue to protest, generally in relation to single issue, livelihood-related issues, or occasionally in relation to anti-Chinese sentiment. Hundreds of residents from the central provinces protested regularly in the months following the 2016 Formosa disaster (see Recent History), with some protesters reportedly beaten and arrested by police. Police also reportedly stopped some protesters from marching from central Nghe An Province to Ha Tin Province to submit their compensation claims. Activists and their families in Nghe An Province reported an increased incidence of harassment and assault by local authorities in relation to the Formosa disaster protests. DFAT Country Information Report VIETNAM (December 2019)
3.51 Large-scale protests occurred on an unprecedented scale in June 2018 in a series of demonstrations in major cities. Thousands reportedly demonstrated in HCMC, Hanoi, Nha Trang, Binh Thuan Province, and other areas against a proposed special economic zone, with some also protesting against a new restrictive cyber security law (see Media). Police in HCMC reportedly beat and detained around 180 people at a stadium, including individuals who were not activists, while civil society organisations reported that plainclothes police officers also beat protesters. By November 2018, at least 127 people were reported to have been arrested and convicted for their participation in the protests. Many protesters subsequently released by police claim to have been mistreated, harassed, assaulted, and detained in relation to the protests in HCMC.
3.52 Low-level protests also occur periodically over land use and compulsory official land acquisition, occasionally involving violence. Under both the Constitution and the Land Law (2013), all land in Vietnam is formally owned by the State, which issues land use rights to individuals or organisations but retains the right to acquire it compulsorily at any time. The Housing Law and Real Estate Business Law (2014) stipulates that land can only be acquired by government if considered necessary for socioeconomic development that is in the public or national interest. The definition of ‘socioeconomic development’ is ambiguous, however, leading to numerous disputes over land use rights. In one such incident in April 2017, villagers in the Dong Tam commune on the outskirts of Hanoi reportedly detained 38 police officers for one week during a land dispute. The standoff ended after the Hanoi mayor committed to not filing criminal charges against protesters, and to investigating land management in Dong Tam and allegations of police injuring the village leader during the protests.
3.53 Since late 2017, there has been a significant rise in instances in which authorities have arrested and charged high-profile activists under the national security provisions. Many of those arrested have received lengthy sentences after highly publicised trials. Some notable cases include: - In February 2018, a prominent advocate for workers’ rights was sentenced to

14 years’ imprisonment in Nghe An Province for 'resisting persons in the performance of their official duties' (Article 330 of the Penal Code) and for crimes committed under Article 331.

The activist sentenced had written about the impact of the Formosa disaster, highlighting the effects on local fishermen and assisting them in seeking justice and compensation; - In April 2018, an anti-corruption and land rights activist in Thai Binh Province was sentenced to thirteen years’ imprisonment, to be followed by five years’ probation, after being convicted of crimes committed under Article 79 after a trial that lasted only hours. The activist, a member of the Brotherhood for Democracy (see Political Opinion (Actual or imputed)), had published articles denouncing the authorities for corruption and abuses of human rights; - In August 2018,

a human rights and environmental activist from Central Vietnam was convicted of crimes under Article 79 and sentenced to 20 years in prison and 5 years’ house arrest, the longest sentence recorded in years for national security crimes. The activist had joined campaigns in support of prisoners of conscience, had used social media to share information about human rights violations, and had campaigned for compensating fishermen affected by the Formosa disaster. During his trial, state media highlighted his affiliation with the Viet Tan organisation (see Political Opinion (Actual or imputed)). The sentence handed down was three years longer than that requested by the prosecutor, with the court adding more time to the sentence because the activist remained silent during his trial and did not admit any crimes. - In November 2019, a

70-year-old Vietnamese-Australian dual citizen and two co-accused were sentenced to twelve years’ imprisonment after being convicted of ‘engaging in terrorist activities to oppose the government’ (Article 113.2 of the Penal Code). Authorities had arrested the man, a Viet Tan member, in Ho Chi Minh City in January 2019 while he was meeting a Brotherhood of Democracy activist. DFAT Country Information Report VIETNAM (December 2019) 27 - In November 2019, a prominent activist was taken into custody upon their arrival at Hanoi International Airport and was released after eight hours of questioning. The activist had left Vietnam in May 2016 to work for a Vietnamese civil society organisation, which campaigns for human rights in Vietnam from abroad.

3.54 In a number of cases, authorities have released activists from prison and forcibly deported them from Vietnam. In May 2017, for example, authorities revoked the citizenship of a Viet Tan member and forcibly deported him to France. In June 2018, a Brotherhood for Democracy leader and his assistant were released from prison in Vietnam and deported to Germany, after having been sentenced in April 2018 to 15- and 9-years’ imprisonment respectively. Conversely, human rights observers report that in other cases authorities have confiscated the passports of activists in order to prevent them from travelling abroad or have imposed restrictions on their domestic travel within Vietnam. Authorities have also subjected prominent activists to house arrest at sensitive times, including during state visits by foreign leaders. In July 2017, Germany publicly accused Vietnam of abducting an asylum-seeking senior Vietnamese official from Germany and forcibly returning him to Vietnam, after he had fled in 2016 amid accusations of economic mismanagement and had been dismissed from Vietnam’s National Assembly. He was later sentenced to life imprisonment.
3.55 Human rights observers report that lawyers who represent political activists often face harassment from authorities to drop cases. Those who do not do so reportedly face restrictions on their ability to practise, which in some cases can lead to disbarring, arrests and detention. Many lawyers are therefore reluctant to accept these cases.
3.56 DFAT assesses that activist who are known to authorities as active organisers of protests, or who openly criticise the state, face a high risk of official sanction. This may include surveillance, harassment, preventative detention, physical assault, travel bans, arrest, and prosecution. This risk is higher for those engaged in areas judged politically sensitive, or who have well-established links with outlawed political organisations. Such activists may not be able to access legal representation and are unlikely to receive a fair trial. DFAT assesses that low-level protester against the government, and their supporters, face a moderate risk of harassment from authorities, which may include arrest and being subjected to violence.
Catholics
3.32 While Catholics reside in most districts, provinces and cities, the highest concentration is in central Vietnam (Nghe An, Ha Tinh and Quang Binh Provinces). In-country sources report that Catholics are generally able to practise freely at registered churches, particularly in areas with larger Catholic populations. Authorities do not, however, permit the Catholic Church in Vietnam to have official publications, radio stations or TV channels, which observers report is a means of limiting proselytisation.
3.33 Unlike other religions, there are no independent Catholic organisations claiming to represent Vietnamese Catholics. There has, however, been a rise in the number of independent ‘house churches’ in locations where Catholic parishes have faced difficulties in registering with provincial authorities, due in part to inconsistent enforcement of national laws. These parishes are generally in remote areas and/or areas with majority ethnic minority populations, with the most problematic regions reportedly in the Central Highlands (Gia Lai, Dak Lak, Dak Nong, Kon Tum, and Lam Dong Provinces), the Northwest Highlands, and Hoa Binh Province. Human rights observers report that these house churches face constant surveillance by authorities.
3.34 The Catholic Church has played a prominent role in organising and engaging political demonstrations on a number of issues, including in relation to historical land grievances. In the aftermath of the Formosa environmental disaster of 2016 (see Recent History), Catholic priests in Nghe An and Ha Tinh Provinces were active in organising demonstrations in response to pollution and high volumes of fish deaths, and assisted parishioners to file lawsuits against the government for financial compensation. Catholic priests were also among the most vocal critics of draft laws on cybersecurity and special economic zones in June 2018 (see Political Activists). For example, the Federation of Vietnamese Catholic Mass Media criticised the Cybersecurity Law’s lack of privacy protections and claimed it had reduced online traffic to Catholic websites DFAT Country Information Report VIETNAM (December 2019)(see also Media). Authorities responded by arresting several Catholic activists, while others reportedly went into hiding or fled the country.
3.35 Throughout 2017 and 2018, state-run media and local authorities in northern Vietnam continued to denounce the role of Catholic leaders and parishioners in protesting the government’s response to the Formosa disaster. As a result, human rights observers reported a notable increase in the harassment of Catholic priests and parishioners throughout Vietnam in 2017 and 2018 by both plainclothes individuals and members of the Red Flag Association, a highly organised pro-government militant group that has typically worked with or under the direction of local authorities. For example, a violent clash broke out in December 2017, between Catholic parishioners and plainclothes individuals regarding the construction of a new chapel in Vinh Diocese. State media reported that parishioners assaulted police, while social media reported plainclothes individuals assaulted parishioners under local authority directives. Human rights observers reported several other violent incidents involving Red Flag members throughout 2017 and 2018, including other attacks in Nghe An and Dong Nai Provinces. International observers reported that the Red Flag Association self-dissolved in 2018 and is no longer active.
3.36 The Catholic community has also been significantly affected by ongoing incidents of land appropriation and destruction of property in a number of locations, including Hue, HCMC, Da Nang, and Hanoi. In January 2019, for example, HCMC authorities reportedly demolished at least 112 residential properties on land claimed by the Catholic Church.
3.37 DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. Catholic adherents who are perceived to challenge the authority or interests of the CPV and its policies, particularly through political activism, face a moderate risk of harassment from authorities or their proxies, which may include arrest or violence. Catholics belonging to house churches are likely to come under surveillance by authorities.
Online activists and social media users
3.61 Social media, especially Facebook, has become a popular option for expressing opinion, more than street protests. Users looking to communicate with each other about politics have found social media a possible avenue where mainstream media is censored and controlled. Authorities closely monitor online activism. Human rights advocates claim there are thousands of agents monitoring online discussion and blogs and claim there is trolling online by a Government organisation known as ‘Force 47’. The activities of Force 47 are not well understood but sources told DFAT that suspicious posts, which are sometimes anonymous, can be attributed to Force 47, and that Force 47 allegedly trolls’ online users and hacks accounts. Force 47 is allegedly active on topics such as religion, women’s and LGBTI rights, and human rights generally.
3.62 Legal reforms in 2019 (sometimes referred to as ‘The Law on Cyber Security’) forced international social media companies to set up offices and store user data domestically. Facebook, one of the most popular online platforms in Vietnam, agreed to greater censorship in accordance with Vietnamese law in 2020. One source told DFAT that the legal reforms have brought greater attention to online commentary and increased attention on activists. Some activists have reported that their phones or computers have been hacked or behave strangely as a result of alleged hacking.
3.63 Low-level users of little profile are sometimes subject to fines, arrest and prison sentences, but sources told DFAT this is inconsistent and may depend on local authorities. Low-level discussion with DFAT Country Information Report VIETNAM January 2022 20 friends from time to time might be tolerated or go unnoticed, but in other cases related to sensitive issues

(such as elections) social media users might be accused of producing ‘fake news’, required to provide ‘evidence’ for their views and fined. Frequent posting online increases the risk of attention from authorities. Those in large cities are less likely to come to the attention of authorities than those in rural areas, according to sources. Several sources told DFAT that being low-profile may actually present a higher risk of arrest because high-profile people are watched and noticed when they are arrested, both domestically and internationally.
3.64 It is difficult to give an overall assessment of the risk to online activists, given that Government crackdowns have been observed in relation to a wide range of issues at different times and against different kinds of people. DFAT assesses that online activists face a moderate risk of official discrimination. A repeated pattern of online activity would generally, but not always, attract the attention of authorities. DFAT is aware of one-off posters being identified and charged on the basis of spreading ‘misinformation’, especially in relation to the COVID-19 pandemic. While a high profile may not be necessary to attract attention, it is likely a repeated pattern of online activity would be required to attract authorities’ attention.
Sexual orientation and gender identity
3.94 LGBTI rights in Vietnam are mixed. Sex between adults of the same sex is legal and LGBTI CSOs are relatively free in their operation. Despite relative freedom from official interference, social stigma and discrimination against LGBTI individuals is common. The situation is better in large cities where LGBTI[1]friendly spaces such as cafes, shops and galleries exist, and many LGBTI people use smart phone applications and directories to engage in physical and online communities. Many LGBTI people use social media, especially Facebook, to network and find communities. However, online hate speech against LGBTI people

is common.
3.95 LGBTI issues are not seen as a particularly sensitive topic by the Government. However, LGBTI people do not have access to same-sex marriage or the right to adopt children. Pride parades can generally go ahead without being registered, in contrast to political rallies and protests and Government sanctioned pride events went ahead even during the COVID-19 pandemic.
3.96 LGBTI people report discrimination as a part of their everyday lives in areas such as healthcare, education and employment, but especially in families. Men or women who are seen as presenting in a way not consistent with traditional gender roles, and especially trans people, face verbal and physical abuse. In[1]country sources told DFAT that wealthy gay men face the least discrimination but that most LGBTI people, regardless of their wealth and identity, still hide their LGBTI identity in order to avoid discrimination.
3.97 Family pressure is strong and many families believe that LGBTI identity can be ‘cured’. LGBTI people may be forced by their families to attend conversion therapy. Lesbians face particular pressure from DFAT Country Information Report VIETNAM January 2022 25 families. In-country sources told DFAT that ‘corrective rape’ (the practice of a man raping a lesbian to ‘correct’ her sexual and gender identity) can occur but the often-hidden nature of such crimes makes it impossible to assess how commonly this occurs. In-country sources told DFAT that the COVID-19 pandemic has forced many LGBTI people to return to their families’ homes where they may face discrimination and violence. DFAT spoke to LGBTI people inside and outside Vietnam who reported being afraid to go home due to the risk of violence or family pressure to marry. Aging LGBTI people who do not have children are at particular risk, given the traditional role that children play in caring for the aged in Vietnamese culture.
3.98 Discrimination against transgender people may come from people who do not understand the difference between different LGBTI identities, and any person who does not present as traditionally cisgender male or female may simply be seen as ‘gay’ or ‘queer’ and face similar discrimination to other LGBTI people. Transgender people in practice may be unable to access trans-appropriate healthcare, for example gender-affirming surgery, or may not have their gender identity recognised by healthcare providers. Many trans people work in the informal sector where discrimination means that the only work available might be in the entertainment industry. Other trans people can be found in other parts of the economy, working in the formal public and private sectors, but can experience discrimination when applying for or working in those jobs. These workers are not protected by anti-discrimination laws and may experience discrimination or a failure to recognise their gender identity.
3.99 In-country sources told DFAT that street violence against LGBTI people is uncommon. Violence is more likely to occur in domestic settings, particularly from parents but also among intimate partners (see domestic violence, covered under women, but may also apply to transgender people, who may be able to access services directed towards women). Verbal abuse and discrimination or attempts to invade the privacy of those involved in pride events are reported by in-country sources.
3.100 LGBTI people, like other Vietnamese people, must complete compulsory military service. Sources told DFAT that there is a culture of denial of LGBTI people in the military. Sources told DFAT that they will generally hide their sexual orientation or gender identity in order to reduce the risk of violence.
3.101 DFAT assesses that LGBTI people in Vietnam face a low risk of official discrimination but also are not protected by laws prohibiting discrimination and hate speech. LGBTI people face a moderate risk of societal discrimination, particularly within their families. LGBTI Vietnamese people do not enjoy day-to-day acceptance but are also unlikely to experience violence (except in the military, for example when completing compulsory military service) or overt discrimination in access to goods and services.
Findings
The issues in this case are whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal accepts that the applicant was a young child when his mother left him and his brothers and that he was cared for by elderly neighbours until he came to Australia. The Tribunal further accepts that the applicant is homosexual and was harassed and teased in Vietnam due to his sexuality.
The applicant provided detailed responses to questions about his political involvement and the Tribunal accepts that he has attended political rallies and that this could cause him to come to the attention of the authorities in Vietnam. Combined with his lack of documentation, his leaving Vietnam via boat and being a failed asylum seeker would be very damaging to him if he was to be returned to Vietnam.
The Tribunal further recognises that the applicant was very young when he arrived in Australia, and he has been in Australia for almost ten years. He has no family in Vietnam, no paperwork

or documentation.
The Tribunal finds that the harm feared by the applicant is from government authorities and that it amounts to serious harm as described in s 5J(5). The Tribunal is further satisfied that the essential and significant reason for the harm feared is the applicant’s religion, his sexual orientation and his political opinion and that harm is systemic and discriminatory.
Given that the applicant fears the government overall, which exists nationally and throughout Vietnam and given current Country Information the Tribunal finds that there is no effective state protection available to the applicant from the harm feared. For these reasons the Tribunal is also satisfied that the real chance of persecution relates to all areas of Vietnam as required by

s 5J(1)(c) of the Act. DFAT Country Information indicates relocation is not an option:
5.23 DFAT assesses that the strong and effective Vietnamese public security network means that there are few options for internal relocation to seek protection from state authorities.
For these reasons the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Vietnam for his religion as a Catholic and for his political anti-government opinion.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s 5J of the Act. In accordance with s 5H(1)(a) of the Act the Tribunal is satisfied that the applicant is outside their country of nationality and owing to a well-founded fear of persecution, is unwilling to avail himself of the protection of that country.
There is no information before the Tribunal to indicate that any of the exclusions set out in

s 5H(2) apply to the applicant. The Tribunal finds therefore that for purposes of s 36(2)(a) of the Act, the applicant is a refugee.
DECISION
1.The Tribunal remits the following matters for reconsideration:
a.Matter 1907452 Safe Haven Enterprise visa application made on 5 October 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
b.Matter 2101529 Safe Haven Enterprise visa application made on 31 October 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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.
…

[2023] AATA 1296

21 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction