2116229 (Refugee) - [2022] AATA 5071

2116229 (Refugee) [2022] AATA 5071 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT’S REPRESENTATIVE:        Ms Ahn Donald, lawyer
CASE NUMBER:  2116229
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kate Chapple
DATE:17 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 17 November 2022 at 7:28am
CATCHWORDS
REFUGEE – protection visa – Vietnam – member of particular social group – homosexual man – fear of harm by family, community and authorities and discrimination in workplace and health services – hidden sexuality and no activity or previous harm – arrived on student visa – recent disclosure to small number of people, two of whom provided supporting statements – mental health and psychologist’s report – country information – official and societal discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36(2)(a), 65, 424
CASES
AFA16 v MIBP [2018] FCA 628
SZTEQ v MIBP (2015) 229 FCR 497
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This decision record relates to an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 November 2021 to refuse to grant the applicant a Protection XA subclass 866 Visa (‘protection visa’) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant was born and grew up in Vietnam.
The Department’s movement records show that the applicant first arrived in Australia [in] January 2018 as a holder of a student visa subclass 500, which expired on 11 May 2021. The applicant has remained onshore since.
On 12 April 2021, a migration lawyer (‘the applicant’s representative’) was appointed to represent the applicant in his application for a protection visa.
On 29 April 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Department for a protection visa.
On 3 May 2021, the Department granted the applicant a Bridging A class WA subclass 010 visa without conditions, which remains current.
The Department did not offer the applicant an interview.
On 4 November 2021, the Minister’s delegate issued to the applicant’s representative a letter of notification of refusal of application for a protection visa addressed to the applicant and the related decision record (‘the delegate’s refusal decision’).
On 9 November 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Tribunal for merits review of the delegate’s refusal decision. The applicant’s representative was appointed to continue to represent the applicant in his application for review.
CLAIMS AND EVIDENCE
Protection visa application
The protection visa application sets out (inter alia) the following details:
10.1.The applicant is a male born in [Year] in Tan Hiep,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2116229 (Refugee)

Details

AGLC: 2116229 (Refugee) [2022] AATA 5071
Case: [2022] AATA 5071
Decision Date: 17 November 2022

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a Protection XA subclass 866 Visa. The applicant, a homosexual man from Vietnam, had arrived in Australia on a student visa and remained onshore. He claimed he would face harm and discrimination in Vietnam due to his sexual orientation from his family, community, and authorities, and that he would experience discrimination in the workplace and health services. The applicant had hidden his sexuality in Vietnam and had not experienced prior harm, but had recently disclosed his orientation to a small number of people in Australia, two of whom provided supporting statements.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically whether he was a refugee due to a well-founded fear of persecution for reasons of membership of a particular social group. This involved assessing the risk of persecution in Vietnam based on his sexual orientation, considering the available country information regarding societal and official discrimination, family attitudes, and access to services. The Tribunal also considered whether any fear of persecution was well-founded, taking into account whether effective protection measures were available in Vietnam and whether the applicant could reasonably modify his behaviour to avoid persecution.

The Tribunal considered extensive country information detailing the conservative nature of Vietnamese society regarding sexuality, the widespread stigma and discrimination faced by LGBTIQ+ individuals, particularly within families and in employment and healthcare settings. While noting some recent legal and policy advancements, such as the declassification of homosexuality as a mental illness, the Tribunal found that societal discrimination remained prevalent. It was noted that LGBTIQ+ individuals often hide their identity to avoid discrimination and pressure to conform to heteronormative expectations, including forced marriage. The Tribunal also considered the applicant's specific circumstances, including his hidden sexuality in Vietnam and his recent disclosures in Australia.

Ultimately, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act. The matter was remitted for reconsideration with a direction that the applicant satisfies this criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This decision record relates to an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 November 2021 to refuse to grant the applicant a Protection XA subclass 866 Visa (‘protection visa’) under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicant was born and grew up in Vietnam. The Department’s movement records show that the applicant first arrived in Australia [in] January 2018 as a holder of a student visa subclass 500, which expired on 11 May 2021. The applicant has remained onshore since. On 12 April 2021, a migration lawyer (‘the applicant’s representative’) was appointed to represent the applicant in his application for a protection visa. On 29 April 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Department for a protection visa. On 3 May 2021, the Department granted the applicant a Bridging A class WA subclass 010 visa without conditions, which remains current. The Department did not offer the applicant an interview. On 4 November 2021, the Minister’s delegate issued to the applicant’s representative a letter of notification of refusal of application for a protection visa addressed to the applicant and the related decision record (‘the delegate’s refusal decision’). On 9 November 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Tribunal for merits review of the delegate’s refusal decision. The applicant’s representative was appointed to continue to represent the applicant in his application for review.CLAIMS AND EVIDENCEProtection visa application The protection visa application sets out (inter alia) the following details:10.1.The applicant is a male born in [Year] in Tan Hiep, Kien Giang Province, Vietnam who is a citizen of Vietnam; of the Catholic religion; never married; and speaks, reads, and writes Vietnamese, and speaks, reads, and writes English.10.2.The applicant’s parents and [siblings], are citizens of Vietnam and live in Hoc Mon, Ho Chi Minh City (Saigon).10.3.The applicant was school and university educated in Ho Chi Minh City. He graduated from [University] [in] Ho Chi Minh City with a Bachelor of [Subject 1] in July [Year]. The applicant was employed as [an Occupation] with a [work sector business] in Ho Chi Minh City for the period August [Year] to December 2017.10.4.The applicant lived with his family in Hoc Mon, Ho Chi Minh City from [Year] until 2018 when he departed Vietnam for Australia.10.5.From the time of his arrival in Australia, the applicant lived in Brisbane with his uncle and family who are Australian citizens.10.6.The applicant completed a postgraduate qualifying program in [Subject 2] at a university in Brisbane from November 2018 to February 2019, and a Master of [Subject 1] at the same university from March 2019 to April 2021. The applicant was unemployed from the date of his arrival in Australia until May 2019 when he commenced work in a [Workplace] in Brisbane.

Evidence

Evidence Before The Court

On 9 November 2021, the applicant’s representative lodged on the applicant’s behalf an application with the Tribunal for merits review of the delegate’s refusal decision. The applicant’s representative was appointed to continue to represent the applicant in his application for review.CLAIMS AND EVIDENCEProtection visa application The protection visa application sets out (inter alia) the following details:10.1.The applicant is a male born in [Year] in Tan Hiep, Kien Giang Province, Vietnam who is a citizen of Vietnam; of the Catholic religion; never married; and speaks, reads, and writes Vietnamese, and speaks, reads, and writes English.10.2.The applicant’s parents and [siblings], are citizens of Vietnam and live in Hoc Mon, Ho Chi Minh City (Saigon).10.3.The applicant was school and university educated in Ho Chi Minh City. He graduated from [University] [in] Ho Chi Minh City with a Bachelor of [Subject 1] in July [Year]. The applicant was employed as [an Occupation] with a [work sector business] in Ho Chi Minh City for the period August [Year] to December 2017.10.4.The applicant lived with his family in Hoc Mon, Ho Chi Minh City from [Year] until 2018 when he departed Vietnam for Australia.10.5.From the time of his arrival in Australia, the applicant lived in Brisbane with his uncle and family who are Australian citizens.10.6.The applicant completed a postgraduate qualifying program in [Subject 2] at a university in Brisbane from November 2018 to February 2019, and a Master of [Subject 1] at the same university from March 2019 to April 2021. The applicant was unemployed from the date of his arrival in Australia until May 2019 when he commenced work in a [Workplace] in Brisbane. The protection visa application sets out claims for protection extracted as follows:11.1.As I hid my sexual orientation from everyone, I did not experience any discrimination or harm in Vietnam. I was most careful about my true sexual orientation. No one, including those closest to me, knew that I was gay. There was therefore no need for me to move to another part of the country. I would have been an exercise in futility anyway, as the same prejudices against homosexual people existed in the Vietnamese society as a whole. 11.2.As a gay man I believe that I will experience discrimination in all aspects of my life: social, financial, employment and health. 11.3.Should I be forced to return to Vietnam, I would have to make a decision about whether or not to come out. At some stage, I would have to do that or I would have to suppress my sexual orientation forever. I would need to live a life of lies as a heterosexual person and I do not know how long I could sustain that. Coming out and being openly gay has many undesirable consequences.11.4.The current law on marriage does not fine a person for being in a homosexual relationship but it does not recognise such relationships either, with the consequence that gay people do not enjoy the many benefits accorded to straight couples. Nor is the government active in taking steps to stamp out discriminatory practices against gay people in areas of education, law, health and employment.11.5.The Government law on marriage is national so relocating to another part of the country does not address the issues. Discriminatory practices are probably more common in smaller cities and towns but they are also very prevalent in Ho Chi Minh City and Hanoi.

Decision

Reasons for decision

Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.decision The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.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).Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…ATTACHMENT BRelevant Country InformationNguyen,Vy 2002, ‘The Closet: Gay and Lesbian Vietnamese ponder whether to come out’, Mailgate website, 16 March Blanc, Marie-Eve 2005, ‘Social construction of male homosexualities in Vietnam. Some keys to understanding discrimination and implications for HIV prevention strategy’, International Social Science Journal, Vol.57 Iss.186, December. (\\NTSSYD\REFER\RESEARCH\INTERNET\S-E-ASIA\vnm32466.we3.pdf)Ammon, Richard 2007, ‘Gay Vietnam (Hanoi): Crouching Love, Hidden Passion’, Global Gayz.com website, June Thinh Nguyen & Buffington, Nancy 2006, ‘Fairies in the Far East – now and then’, Third Semi-Annual Conference on the Rhetoric of Monstrosity, Stanford University March 2-9 2007, 12 March Rights Watch website 18 August 2022: Vietnam adopts global LGBT health standardVietnam’s Health Ministry officially confirmed on August 3, 2022, that same-sex attraction and being transgender are not mental health conditions, Human Rights Watch said today. The decision brings Vietnam’s health policy in line with global health and human rights standards. Vietnam’s new directive states that “the American Psychiatric Association and the World Health Organization (WHO) have confirmed that homosexuality is entirely not an illness, therefore homosexuality cannot be ‘cured’ nor need[s] to be ‘cured’ and cannot be converted in any way.” “The Vietnamese Health Ministry’s recognition that sexual orientation and gender identity are not illnesses will bring relief to LGBT people and their families across Vietnam,” said Kyle Knight, senior health and lesbian, gay, bisexual, and transgender (LGBT) rights researcher at Human Rights Watch. “LGBT people in Vietnam deserve access to health information and services without discrimination, and the Health Ministry’s new directive is a major step in the right direction.” Vietnam has made some progress on LGBT rights in recent years, Human Rights Watch said. In 2013, the government removed same-sex unions from the list of forbidden relationships, but the update did not allow for legal recognition of same-sex relationships. In 2015, the National Assembly updated the civil code to make it no longer illegal for transgender people to change their first name and legal gender, but the revisions did not create a legal gender recognition procedure. In 2016, Vietnam, while a member of the United Nations Human Rights Council, voted in favor of a resolution on the need for protection against violence and discrimination on the basis of sexual orientation and gender identity. The delegation made a statement of their support before the vote, saying “the reason for Vietnam’s yes vote lay in changes both in domestic as well as international policy with respect to LGBT rights.” However, as Human Rights Watch documented in a 2020 report, factual misunderstandings and negative stereotypes help fuel human rights abuses against LGBT people in Vietnam. The belief that same-sex attraction is a diagnosable, mental health condition is pervasive in Vietnam. This false belief is rooted in the failure of the government and medical professional associations to effectively communicate that same[1]sex attraction is a natural variation of human experience. Researchers have written that Vietnam never officially adopted the initial position of the WHO, which introduced a diagnosis for homosexuality in 1969. Since the homosexuality diagnosis appears to have never officially been on the books in Vietnam, therefore the government never officially removed the diagnosis, as many countries around the world did when the WHO declassified it in 1990. The government’s treatment of homosexuality as deviant behavior, combined with prominent medical figures promoting this view, fueled the widespread belief that same-sex attraction was pathological. Pervasive myths about homosexuality have an impact on children and youth. “There’s a lot of pressure on kids to be straight,” a school counselor in Hanoi told Human Rights Watch. “It’s constantly referenced that being attracted to someone of the same sex is something that can and should be changed and fixed.” The anthropologist Natalie Newton wrote in a 2015 article that, “Vietnamese newspaper advice columns have also featured the opinions of medical doctors and psychologists who have written about homosexuality as a disease of the body, a genetic disorder, hormonal imbalance, or mental illness.” International health bodies and a growing number of national health authorities and health professional associations around the world have issued policies to affirm that sexual orientation and gender identity are not illnesses, as well as LGBT non-discrimination policies. These include Thailand’s Public Health Ministry, which stated in 2002 that “persons loving the same sex are not considered mentally abnormal or in any way ill.” National health professional associations in Hong Kong, the Philippines, and India have affirmed that position and supported non-discriminatory health rights for LGBT people. The Health Ministry issued the following instructions for all medical centers across Vietnam: 1. Enhance information propagation and dissemination so that the medical doctors, staff, and patients at medical examination and treatment centers have a correct understanding about homosexuality, bisexuality, and transgender people. 2. While administering medical examination or treatment for LGBT patients, health workers need to ensure gender equality and respect to avoid discrimination and prejudices against these groups. 3. Don’t consider homosexuality, bisexuality, and being transgender an illness. 4. Don’t interfere nor force treatment upon these groups of patients, if any, it must be in the form of psychological assistance and performed only by those who understand sexual identity. 5. Enhance internal review and inspection efforts for medical examination and treatment centers and practitioners to ensure compliance with the professional codes in medical services according to the law. The directive follows a civil society-run petition that garnered more than 76,000 signatures and a letter from the WHO’s Vietnam office confirming that the “WHO firmly holds the view that any effort to convert the sexual orientation of a non-heterosexual person lacks medical justification and is morally unacceptable.” “Vietnam now joins the growing number of governments around the world affirming that same-sex attraction and gender identity are both natural variations of human experience,” Knight said. “Vietnam’s Health Ministry has boosted fundamental rights with this directive, and LGBT people now have increasingly firm grounding for expressing themselves without fear of negative reactions.”Immigration and Refugee Board of Canada, Vietnam: Treatment of individuals based on their sexual orientation, gender identity and expression, and sex characteristics by society and authorities, including access to education, employment, housing and health care, particularly in Hanoi and Ho Chi Minh City; state protection (2020-May 2022), 30 June 2022According to sources, Vietnamese law does not legally protect against discrimination on the grounds of sexual orientation or gender identity (Freedom House 3 Mar. 2021, Sec. F4; COC Netherlands Jan. 2021, 36). Sources add that "societal discrimination" of these communities "remains a problem" (Freedom House 3 Mar. 2021, Sec. F4) or that LGBTIQ individuals are "socially marginalized" (COC Netherlands Jan. 2021, 36). A country information report on Viet Nam by Australia's Department of Foreign Affairs and Trade (DFAT) describes [the situation of] LGBTI rights in Viet Nam as "mixed" (Australia 11 Jan. 2022, para. 3.94).The DFAT report indicates that "social stigma and discrimination" against LGBTI people is "common" (Australia 11 Jan. 2022, para. 3.94), and the HRW report notes that "[s]exual and gender minority children and young adults" encounter stigma and discrimination at home and at school (HRW Feb. 2020, 1). The UN RCO publication states that the stigma and discrimination faced by transgender people "can be crippling" (UN 10 Dec. 2021). The DFAT report indicates that "[a]ging LGBTI people" without children "are at particular risk," in light of the role children traditionally play in tending to the elderly in Vietnamese culture (Australia 11 Jan. 2022, para. 3.97). According to a report by the US Department of State's Overseas Security Advisory Council (OSAC), acceptance of LGBTI+ issues is not "widespread" in Viet Nam (US 5 Aug. 2021, 6). According to a report published, commissioned, and conducted by the Asian Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA Asia) [2], since 2008, public awareness and attitudes regarding "LGBTIQ people have evolved in a positive way," issues affecting the SOGIESC community are "no longer a taboo topic in public discussion," and social support is increasing (ILGA Asia 2021, 8).In correspondence with the Research Directorate, an associate professor at Linköping University in Sweden, who researches school bullying, power relations, gender, and sexuality, and who has conducted research in Hanoi, Ho Chi Minh City, and Haiphong, indicated that members of sexual and gender minorities are victims of violence in Hanoi and Ho Chi Minh City (Associate Professor 24 June 2022). The same source added that transgender people in those cities are "more at risk," since their "perceived deviation from dominant gender and sexual norms is more publicly visible" (Associate Professor 24 June 2022). The same source stated that at home, sexual and gender minorities in Hanoi and Ho Chi Minh City "may be subjected to beatings, exclusion, or forced 'cures' such as medication and spiritual rituals," and added that transgender people specifically may experience "mistreatment at home" (Associate Professor 24 June 2022).Freedom House indicates that LGBT+ pride events take place annually in Viet Nam (Freedom House 3 Mar. 2021, Sec. F4), but the DFAT report states that people involved in LGBTI pride events are reported to have experienced "[v]erbal abuse and discrimination or attempts to invade the[ir] privacy" (Australia 11 Jan. 2022, para. 3.99).The DFAT report cites LGBTI people within and beyond Vietnam who reported "being afraid" to return to their families' homes because of the "risk of violence or family pressure to marry" they would face there (Australia 11 Jan. 2022, para. 3.97). The Associate Professor indicated that sexual and gender minorities in Hanoi and Ho Chi Minh City are "discriminated against" in employment settings through "non-employment and differential treatment," and added that transgender people there can experience "denial of jobs or promotions" (Associate Professor 24 June 2022).The Associate Professor indicated that sexual and gender minorities in Hanoi and Ho Chi Minh City do not have "adequate access" to "LGBTIQ2+ friendly" health care facilities or services, and experience "ridicule, harassment, and denial of treatment" (Associate Professor 24 June 2022).DHA COISS Common Claims Vietnam 10 February 2022LGBTIQ+ Vietnam has progressively liberalised laws around same-sex conduct in recent-years. In recent years the government has amended legislation to increase recognition of LGBTIQ+ rights and in 2013 removed consensual same-sex relationships from the country’s list of forbidden relationships. In 2015, the government repealed a ban on same-sex marriage. In addition to legal rights, the government has introduced targeted medical services; for example, in January 2019, the Binh Dan Hospital in Saigon opened Vietnam’s first clinic catering specifically to members of the LGBT community. However, while same-sex sexual conduct is legal, there are no laws to prohibit discrimination on the basis of sexual orientation or gender identity. Also, while same-sex marriage is not banned, same-sex marriages are not officially recognised.Vietnam increasingly accepts the rights of LGBTIQ+ people. The government does not consider LGBTIQ+ issues to be politically sensitive. Numerous civil society organisations advocating for LGBTIQ+ rights have emerged in recent years and operate relatively freely. Mainstream Vietnamese media – which is controlled by the government – increasingly promotes the view that being gay is normal. Vietnam’s first pride rally took place in 2012,95 and has become an annual event. Authorities have allowed pride marches and gatherings to proceed despite not being registered. LGBTIQ+-friendly spaces, including cafes, shops and galleries exist in urban centres. Many LGBTIQ+ people use smart phone applications and directories to engage in physical and online communities and social media apps to network and find communities. Despite these societal advances, DFAT advises that most LGBTIQ+ people hide their sexual/gender orientation/identity in order to avoid discrimination. Stigma and discrimination against LGBTIQ+ people remains widespread in Vietnamese society. Credible sources observe that sexual orientation and gender identity remain the basis for stigma and societal discrimination. This is particularly true for transgender people and youth. Vietnamese LGBTIQ+ youth face widespread discrimination and violence at home and at school. Covid-19 may have exacerbated this situation, forcing may people to return from cities to family homes in rural areas where they may be subject to familial abuse or discrimination. The belief that same-sex attraction is a diagnosable, treatable, and curable mental health condition is common, and some LGBTIQ+ people – especially lesbians – may be forced by their families to attend conversion therapy. Violence against LGBTIQ+ people is much less common than other forms of discrimination, such as verbal insults and online abuse, and rarely occurs on the street. According to DFAT, violence is more likely to occur in domestic settings, particularly from parents and intimate partners.DFAT Country Information Report Vietnam 11 January 2022Mental health2.16Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level. 2.17Stigma is a barrier to seeking treatment and some people or their families may deny that a mental health problem exists in the first place. Young people may be more willing than older people to self-describe as mentally unwell and seek treatment.2.18The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.2.19Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.Sexual orientation and gender identity3.94LGBTI 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-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. 3.95LGBTI 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.3.96LGBTI 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-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. 3.97Family 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 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.3.98Discrimination 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.3.99In-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 … Verbal abuse and discrimination or attempts to invade the privacy of those involved in pride events are reported by in-country sources.3.100LGBTI 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. 3.101DFAT 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. The Vietnamese website 16 June 2021: Overview of LGBTQ+ Rights in VietnamIs Vietnamese society accepting of LGBTQ+ people?Even though the law in Vietnam has been more friendly towards LGBTQ+ people (or at least in principle) and the government has been pledging to improve the conditions of the community, LGBTQ+ people in Vietnam still face tremendous discrimination from society and pressure from their families to conform to a “normal” heteronormative life.For example, there is an issue of homosexual individuals marrying people of different gender due to the pressure from either society or their family.[8] Homosexual individuals also engage in marriage arrangements with other homosexual individuals of a different gender to please their families on both sides.Due to the government’s inefficiency in drafting regulations for transgender people, undergoing hormone therapy or other related medical procedures remains extremely difficult and dangerous, not to mention very costly.LGBTQ+ adults are not the only ones facing hardship in their social life. LGBTQ+ students and children in Vietnam also reported violence and discrimination. Oftentimes when students come out as LGBTQ+ people to their family, teachers or friends, they are told that they have “a disease.”While Vietnamese society is becoming more open and accepting of the LGBTQ+ community, it can be seen that it is still generally tough for many LGBTQ+ individuals to live a happy and fulfilling life.UNDP, USAID (2014). Being LGBT in Asia: Vietnam Country Report. Bangkok.The lack of a viable livelihood is a real and valid concern for LGBT persons in Viet Nam. CARE International in Viet Nam commissioned three studies on the underlying cause of poverty for LGBT people to find that stigma and discrimination perpetuate poverty in the LGBT community. MSM, lesbians, gays, and transgender participants reported that abandonment by family and denial of education and employment are key factors that keep them in poverty and drive them to sex work, which further predisposes them to abuse, exploitation, and marginalization by society.…Stigma and discrimination towards LGBT people are common at the workplace. Transgender people in particular, because their gender identity and expression are often more physically visible, are usually discriminated against and rejected by potential employers. They have difficulty finding a job that meets their expectation and competency. For LGBT people whose sexual orientation and gender identity and expression are not readily evident in their appearance, they are “safe” as long as they remain in the closet. Conservative employers still view LGBT people negatively, often stereotyping and characterizing LGBT employees in a similar way as the government does, as a social evil. Thus, LGBT employees are often isolated at work and unable to be honest and open about their personal lives for fear of losing their jobs. The psychological pressure of keeping their sexual orientation and gender identity hidden and concern over their personal safety detracts from their work performance. Some of those who are brave enough to be open in the work place are victimized by violence and discriminatory practices and eventually have to quit their jobs. Employers generally do not have enough information and knowledge of LGBT people or SOGI and thus tend to have negative stereotypes of LGBT people, especially of transgender people. The current Labor Code has no provision to prevent discrimination on the basis of sexual orientation and gender identity. In-depth research on the working environments for LGBT people in general, and transgender people in particular, is still lacking. There is insufficient reliable information to build a campaign for social awareness. Vietnamese businesses also do not publicly express support for the LGBT community. The concept of businesses portraying themselves as supportive of LGBT people in the media is absent in Viet Nam. Despite the hostile environment for LGBT people, certain sectors such as design, fashion, arts, performance and entertainment are generally considered more LGBT-friendly than others. Dialogue participants also thought that white-collar workers tend to be more open to LGBT people. This may be due to their access to information on LGBT issues, and the tendency of white-collar LGBT workers to build a positive image of the LGBT community at the workplace. They have produced and publicly shared many short films and video clips about LGBT workers. Members of the LGBT community thus tend to seek white-collar employment.…The traditional perception of sex and sexuality in Vietnamese culture, and Asian culture at large, is generally conservative and severe. Most parents of LGBT people have beliefs and perceptions of gender that conform to traditional values. It is likely that they will not be able to face the truth that their children have sexual orientations, identities and behaviors that deviate from societal norms, and will react disapprovingly and harshly.Families, and the general public as a whole, usually do not have access to accurate information about LGBT people and thus do not understand sexual orientation and gender identity. What they do receive are the negative stereotypes portrayed by the media and the entertainment industry, which most of the time try to attract the attention of readers and viewers with shocking and inaccurate headlines and images. Thus, it is made impossible for parents to sympathize with their children. LGBT people are discriminated against, physically and psychologically assaulted, abandoned, and “cured” by their family by many harmful methods that involve mental and physical abuse. They are forced to get married to those who they do not love, which can lead to the breakdown of marriages after a short period of time, further damaging the image of LGBT people. Transgender people are assaulted, abandoned, and humiliated by their own families because of their gender expression. The situation of families with LGBT people has been changing fast in recent years, thanks to the establishment of the group PFLAG and other organizations promoting the LGBT community. Many parents have joined individual PFLAG chapters and advocated for their children’s rights. A few others have actively learned more about LGBT issues and gradually have become more supportive and sympathetic to their children and other family members. More and more families are accepting their LGBT children as a result. ICS has been working closely with core members of PFLAG, integrating them into the LGBT movement and the constant struggle for LGBT rights. PFLAG is currently very active in Ha Noi and Ho Chi Minh City, the two most populated cities in the country. ICS and PFLAG in Ha Noi provide counselling and support to their members to come out to their family, and most of them do so. However, in more rural provinces, there are no PFLAG groups to provide support to families of LGBT people. Other CSOs and community organizations around the country also actively support the coming out process of LGBT children to their families. V Smile provides consultations to closeted gay men in Ha Noi. The Tien Giang lesbian groups share their experiences of coming out to families with others. In Da Nang, community members hold in-person meetings to share coming out experiences. AAU Radio interviews parents and family members who have LGBT relatives and interview LGBT individuals on their coming out processes. Despite the growing presence of LGBT-supportive CSOs, there are limited helplines or services to support parents and family of LGBT children during the coming out process. At the local, or city, level there are occasional resources such as PFLAG and the hotline for lesbian women run by CSAGA. However, at the national level, hotlines do not have any knowledge of LGBT issues and instead of helping, they tend to worsen the situation by providing advice based on outdated knowledge and information.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the country information referenced and set out in Attachment B and notes the following, in particular, in light of the applicant’s claims and evidence:42.1.Despite societal advances, the 2022 DFAT report advises that most LGBTIQ+ people in Vietnam hide their sexual/gender orientation/identity in order to avoid discrimination. Earlier sources indicate that homosexuals and lesbians in Vietnam do not disclose their sexuality to their families and communities; and that most conform outwardly to conservative family and social expectations, even to the extent of marrying a partner of the opposite sex.42.2.The 2014 Being LGBT in Asia report states that the traditional perception of sex and sexuality in Vietnamese culture, and Asian culture at large, is generally conservative and severe. Most parents of LGBT people have beliefs and perceptions of gender that conform to traditional values. It is likely that they will not be able to face the truth that their children have sexual orientations, identities and behaviours that deviate from societal norms, and will react disapprovingly and harshly.42.3.The 2022 DHA report states that stigma and discrimination against LBTIQ+ people remain widespread in Vietnamese society, particularly so for transgender and young people who face violence and discrimination at home and school.42.4.The 2022 DFAT report states that despite relative freedom from official interference and discrimination, social stigma and discrimination against LGBTI individuals is common, and they do not enjoy day-to-day acceptance. The situation is better in large cities where LGBTI-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. However, online hate speech against LGBTI people is common. LGBTI people report discrimination as part of their everyday lives in areas such as healthcare, education and employment, but especially in families, however they’re unlikely to experience overt discrimination in access to goods and services. Violence is more likely to occur in domestic settings, particularly from parents but also among intimate partners.42.5.The Vietnamese website reported on 16 June 2021 that, despite the government pledging to improve conditions, LGBTQ+ people in Vietnam still face tremendous discrimination from society and pressure from their families to conform to a normal heteronormative life. While Vietnamese society is becoming more open and accepting of the LGBTQ+ community, it can be seen that it is still generally tough for many LGBTQ+ individuals to live a happy and fulfilling life.42.6.The January 2022 DFAT report states that mental healthcare in Vietnam varies around the country, that it is often inadequate, stigma is a barrier to seeking treatment, more so among older people, and cost may be a barrier especially for the very poor or those with complex needs.42.7.The 2014 Being LGBT in Asia Vietnam country report states that the lack of a viable livelihood is a real and valid concern for LGBT persons in Viet Nam. CARE International in Viet Nam commissioned three studies on the underlying cause of poverty for LGBT people to find that stigma and discrimination perpetuate poverty in the LGBT community. MSM, lesbians, gays, and transgender participants reported that abandonment by family and denial of education and employment are key factors that keep them in poverty and drive them to sex work, which further predisposes them to abuse, exploitation, and marginalization by society.42.8.The 2014 Being LGBT in Asia report also states that stigma and discrimination towards LGBT people are common at the workplace. Transgender people in particular, because their gender identity and expression are often more physically visible, are usually discriminated against and rejected by potential employers. They have difficulty finding a job that meets their expectation and competency. For LGBT people whose sexual orientation and gender identity and expression are not readily evident in their appearance, they are “safe” as long as they remain in the closet. Conservative employers still view LGBT people negatively, often stereotyping and characterizing LGBT employees in a similar way as the government does, as a social evil. Thus, LGBT employees are often isolated at work and unable to be honest and open about their personal lives for fear of losing their jobs. The psychological pressure of keeping their sexual orientation and gender identity hidden and concern over their personal safety detracts from their work performance. Some of those who are brave enough to be open in the work place are victimized by violence and discriminatory practices and eventually have to quit their jobs. 42.9.As reported by Human Rights Watch (HRW), on 3 August 2022, Vietnam’s Health Ministry officially confirmed that same-sex attraction and being transgender are not mental health conditions or illnesses, and do not require curative or conversion therapy, and issued instructions for all medical centres across Vietnam to (inter alia) ensure a correct understanding of homosexuality, bisexuality and transgender people, and to not interfere with or force treatments on these groups other than psychological assistance to be provided only by those who understand sexual identity. HRW commented that LGBT people in Vietnam now have increasingly firm ground for expressing themselves without fear of negative reactions.42.10.The February 2022 DHA report states that in recent years the Vietnamese government has amended legislation to increase recognition of LGBTI+ rights: in 2013 consensual same-sex relationships were removed from the country’s list of forbidden relationships, and in 2015 the ban on same-sex marriage was repealed, without affording official recognition. Further, in 2019, the Binh Dan Hospital in Vietnam opened Vietnam’s first clinic catering specifically to members of the LGBT community. The government does not consider LGBTIQ+ issues to be politically sensitive and civil society organisations, the media, and online communities are free to operate and promote LGBTIQ+ rights.Other considerations