2116229 (Refugee)

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.