2011000 (Refugee)

The applicant sought a protection visa, having abandoned original claims and advanced new claims based on his sexual orientation as a homosexual man and the risk of undergoing gay conversion therapy in Vietnam. The decision under review was made by Wayne Pennell, Senior Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing a real risk of significant harm if removed to Vietnam. The Tribunal was required to assess the credibility of the applicant's claims, the likelihood of persecution or serious harm, and the availability of effective protection measures in Vietnam.

The Tribunal found that the applicant did not face a real risk of persecution or imprisonment, nor a real chance of serious harm, in Vietnam. It specifically rejected the claim that the applicant would face significant harm due to his sexual orientation, noting that the applicant had not previously suffered harm in Vietnam and that the DFAT country information indicated that failed asylum seekers are not generally stigmatised and returnees are only occasionally questioned by authorities. The Tribunal applied the established test for "real risk," which is equivalent to the "real chance" test for well-founded fear, and concluded that the applicant's claims regarding his sexuality did not establish a real risk of significant harm.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that the applicant did not satisfy the criteria under section 36(2) of the Act.