1509351 (Refugee)

1509351 (Refugee) [2017] AATA 2088 (24 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509351
COUNTRY OF REFERENCE:                  Kyrgyzstan
MEMBER:Lilly Mojsin
DATE:24 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

STATEMENT MADE ON 24 AUGUST 2017 AT 10:07AM
CATCHWORDS
Refugee – Protection Visa – Kyrgyzstan – Religion – Christian – Apostate – Particular social group – Homosexual – Lesbian – Masculine dress – Fear of violence – Lack of state protection – Traditional cultural mores
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR
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 Immigration to refuse to grant the applicant a Protection visa [PVA] under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Kyrgyzstan, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] June 2015.
The applicant appeared before the Tribunal on 9 August 2017 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In her PVA dated [in] June 2014 the applicant has claimed that
·1997 she started to attend a [Christian] Church to support her religious beliefs and because she found it easy to communicate with ‘the believers’.
·2000-2006 the applicant attended a local [Christian] church in [City 1], during this time she was studying at [School 1]. At church she was involved in [details of activities with church]. These were organised by [a religious organisation]. [Further details of activities undertaken with church].
·2002 the applicant became a full member of the church. At this point she decided to adopt Jesus and to start to spread the word. She discussed her concerns with the pastor and he encouraged her to move towards being baptised. The pastor told the applicant that the first step was to tell people that she had accepted Jesus Christ and that she was moving towards Baptism. The applicant told her [a number of her friends]. They reacted strangely. [One] friend thought it was a joke and mocked the applicant. Her [other friends] were nasty and said that she could not do this as she was Kyrgyz.
·Most people in Kyrgyzstan have a bad attitude to [Christians]. They think it is some type of sect that has strange ceremonies. They only have good attitudes to Muslims and Russian Orthodox.
·2003 she was attacked by [a number of] male students. She was so badly hurt that she had to remain in hospital for [a number of] days.
·She undertook a special religious course for more than 6 months and commenced these studies in late [2003], remained behind after the Sunday service to study with [a leader of the church]. He explained all the aspects of the [Christian] faith to approximately [number] people.
·[In] 2003 the applicant was baptised [near] [City 1]. It was a [details of baptism]. The following day she went to church and could participate in the eating of the bread and drinking wine. They were introduced to the congregation as new members of the church. She was given two books on bible study.
·After being baptised she participated in church activities such as bible study which was [details of activity]. A pastor or senior member of the church ran the group. They would start with a prayer then the reader would read out & passage from the bible. The group would discuss what it meant for approximately 30 minutes. They would then have a short break and start again with another prayer. They listened to the second passage and discussed it for about 20 minutes. These passages were mainly from the New Testament, The group would always finish with a song. The applicant also attended the [prayer meetings]. Here they discussed the needs of and especially for those Kyrgyz people who had become Christians and had been expelled by their families.
·As a full member of the church the applicant would give [a portion] of her wages to the church. She was happy to pay as she knew it was for good purposes. But many people thought that this showed that the church was money grabbing.
·The applicant anticipated that she would face some problems because of her baptism. She was so happy after the ceremony that she wanted to talk to people about it. However she was mocked and criticised by her friends, team mates and by local people. She showed [a number of] girls in her university class and they were shocked and very critical. They said that the applicant was Muslim because it was assumed that all Kyrgyz people were Muslim.
·She noticed difficulties in walking to church. Most of the congregation at their church in [City 1] were [other ethnicities]. Very few attendees were Kyrgyz. People would look at the applicant in anger and some threatened the applicant. The men would try and block the applicant’s passage and said they would catch her and beat her.
·The applicant was involved in the service for [children]. The church youth worker and the applicant walked through the streets talking to children who were playing. They told them that they would be at service on Sunday. They also organised special events for children in the summer such as sporting contests and ice-cream days. They made bright paper invitations and handed them out to children on the street. They also knocked on doors of some houses and told the parents about the children’s service. Many parents became very aggressive.
·The applicant also continued to assist at the summer camps, but as she was still working alter 2006 she could not remain for long periods. From 2005-2010 the applicant was involved in going to spread the word in outlying villages on Sundays. About [a number of] church members went in the church bus and cars to villages which were 8-10 hours drive away. These villages included [names of villages].
·In these villages they divided into [smaller groups] and distributed brochures about their faith. They went knocking on doors and she introduced herself as a [Christian]. They started conversations with the villagers and usually went to six or seven houses in one day. Some people were friendly and wanted more information. If there was a good response they would leave leaflets and sometimes even a Bible.
·In 2009, the applicant was employed at [a] school in [City 2]. The applicant’s contract was discontinued due to distributing leaflets and bibles.
·Once again, in 2010 the applicant was [teaching] at [another school]. Her employment was discontinued due to distributing pamphlets about the applicant’s beliefs.
·In summer 2010 the applicant found a new employment position in two schools. She worked in [details of school] teaching [subject] for [a number of] hours a week. She was also employed with [another school] for [a number of] hours a week. She was too fearful to talk about her religion at these schools.
·The applicant contends that [sport] is a big part of her life. [For a number of years] she was a member of the national women’s team. She played for Kyrgyzstan against [a number of countries]. She was also a member of [name of team] which was the second national team. She has trained girls’ teams as part of her employment at [schools]. Because of her sporting interests and her employment she has always trained regularly. She [details of training].
·The applicant has dressed in sporting clothes since she was at university. She regards this as her natural dress style as she is involved in physical activity for most of the day. However this style means that the applicant is not considered to be appropriately dressed by many people in Kyrgyzstan. Some people think she looks like a lesbian. There are negative attitudes towards lesbians in Kyrgyzstan. Since Kyrgyzstan became independent from the USSR the position for women has declined and men are wearing more influential Islamic dress, including hijab and burka. Over the last 10-15 years women have become less visible in Kyrgyz society. They are expected to be focused on their roles in the home, to' remain at home, to give up personal goals of study and employment, and to only go out of the home with male relatives. These changing social views have caused problems for women’s sport. The applicant noticed that many of the girls who had trained with the applicant were prevented from pursuing their sporting activities. The applicant contends that she has been abused often due to her family background, her interests and her appearance. She was insulted as a child by her classmates and beaten by her teachers because she was [personal details]. She stopped communicating with people and became a very reserved person.
·At [School 1] were the applicant studied from 2000-2006 was male dominated. There were only [a small portion of female] students in her course. She was mocked due to her appearance and interests. She was fearful that the students would find out she was [personal details].
·Some of the male students found out that the applicant converted to Christianity and were very angry. They said that the applicant betrayed Allah. She was consequently badly beaten and remained in hospital for [a number of] days after the attack.
·Due to her love of sport, she has faced problems such as regular discrimination. In 2012 she was chosen to attend [a] training event in [location]. This workshop was organised by [organisation]. Some of the applicant’s co-teachers were angry that the applicant was selected and thought that as a woman she should not go on the training program.
·The applicant further asserts that she has been abused because of her appearance. In 2005 she bought a cross at [a church]. When she was wearing it on the street, a Kyrgyz man saw it and asked the applicant if she attended church, When she replied, ‘yes’ he ripped the cross from her neck. She was too frightened to wear the cross after this.
·The applicant was physically assaulted in [2011], this began when she was training at a stadium. She could not tell that die [number] men were peasants and uneducated. They called out asking why the applicant was dressed in sporting clothes and if she was a Muslim, They became more hostile when she told them that she was a [Christian]. She was physically assaulted because of her religion and her appearance.
·She did not report this to the police as one of the [attackers] said his [relative] was a policeman. He showed the applicant a photo of himself with a man in a police uniform. She did not think that the police would assist her as rapes are not considered to be crimes in Kyrgyzstan. They are not taken seriously by the police. She feared that if she mentioned that she was attacked because she was a Christian, the police would be rude to her and would say that she had created, problems by changing her faith. They would not do anything on her case and there was no other organisation which she could go to push the police to act.
·The applicant saw these men again [later in] 2011. She was returning-home and tried to avoid them when she realised that they were the same men. She thinks this indicates that these men were local to her.
·She fears that she will be at risk from Kyrgyz men who are Islamic and traditional. These men are moving from fringe areas into tire town. They will look at her with suspicion and she is frightened about what could happen next. In addition, there are very few women left who dress like the applicant
The applicant provided to the Department a letter of support from [a Christian group] from [City 1] and [another Christian group] in [Australia]. She also provided scanned photographs of herself with her children’s group in a [Christian] church in [City 1].
The applicant’s advisor provided a pre-hearing submission to the Tribunal dated 2 August 2017. That submission raised an additional claim based on her sexual orientation (a lesbian). She claims that she did not disclose her sexual orientation claim to the Department in previous statements or during her interview as she was concerned that the Department would draw adverse inferences if she revealed that she was a lesbian.
At the Tribunal hearing the applicant said that she was born in [City 2] and raised [near] [details of location]. It was [details of upbringing]. She was sent to college where she trained as [Occupation 1], she completed [details of education]. She joined [a national sports team] and started her studies for a tertiary degree at [School 1] and training to becoming an education teacher. She started working after completing [her] course, and she worked as [teacher] for 2 years to pay back her degree. She worked in a [school] whilst at the same time working as [details of duties] at [a sports] school until she came to Australia. She has been working in Australia, she found a job as [details of various positions held in Australia].
In relation to her becoming a [Christian], she said that she learned, from [Christians] about God. They had visited her [during her upbringing]. After she moved back to [City 2] she had a desire to be with Christians so she found a [Christian] church in [City 1]. She was then about [age] years old and she continued to attend the same church, except for the last 12 weeks before coming to Australia, because she was seriously depressed. On her arrival in Australia she attended the [Christian] church at [location in Australia]. They do not speak Russian, she could not find one that spoke Russian but they spoke [another language]. She did not continue going to the church because the last 2 years she found out that the church was negative toward LGBT people. That was why in the last 2 years she lost her desire to attend any churches. She has lost her desire for the [Christian] church but she does not want to lose God. She cannot live without God because she needs him. She wants to be herself. Because her sexual orientation is gay, she used to hide it for so many years from the church and the people because of her huge fear.
She did not choose a country to go to, she just wanted to leave her country for where there is tolerance for gay people. She could no longer contain her sexual attraction to women. She also wanted to be free in her faith without fear of telling people what God she believed in.
She did not tell the Department she is gay, she said she was fearful of saying so and was held back by a huge fear. For many years she could not even pronounce the word Lesbian. She has an ongoing inner conflict about how one could be a lesbian and also a Christian. She is not in any relationships either in Australia or in Kyrgyzstan. She was also afraid because since her first day in Australia and she started attending church, she feared the church would find out about her orientation. In the course of the initial period, they supported her as a Christian.
She came to Australia on her own, she came with [a number of] men as part of the team. She travelled on false documents on a business visa. According to those documents, she was director of a [company] and the [guys] who came with her they were allegedly her colleagues.
She applied to a travel company that was sending people to [another country]. Before Australia she applied for [a visa to that country] and she did not get it. She was very upset and was asking if they could please send her to another country. So the travel company started obtaining visas to Australia. When she read about Australia on internet she realised that LGBT people had freedom and there was freedom of faiths in Australia.
Since being in Australia she has become more pronounced in her confidence and courage as a Lesbian. In the past 2 years she has told her friends and it was a huge step. She was dreading telling them for fear that they would stop communicating with her and it came as huge surprise when they started to encourage her and support her.
When asked what it is that she fears about returning to Kyrgyzstan she responded that on coming back she will be pressured by the community to confirm to the traditional norms she will need to grow out her hair and wear feminine clothes. In the last 2 or 3 years she had a lot of experience being asked tricky questions and how her appearance did not conform to traditional norms and her Christian faith. She is also afraid she will be forcefully required to renounce her faith and accept Islam. She is afraid to be subjected to physical violence of being Christian and Lesbian.
In [2011] she was attacked when she was jogging at the stadium, by [number] men, because of the way she looked and they found out she was Christian and not Muslim. At that time she was very angry with God, the people and the church. She had a desire to catch those [men] and kill them. She is afraid upon her return she will be subjected to sexual violence once they find out she is Lesbian. Before they suspected she was Lesbian, if she comes back now in her acceptance of who she is it will be difficult to hide who she really is.
She was severely bashed in 2003, it was in February in winter and she was severely bashed by [a number of people] in her year at [School 1] as they knew she was a [Christian]. They were infuriated and resented her appearance as she was not wearing traditional clothes. While they bashed her they pressured her to renounce Christianity and to engage in female rituals and clothing. One of them pushed her heavily and [details of injuries]. Then her best friend [ran] up and they threatened her. She told anyone they would stop her graduating from university. She spent [a number of] days in the trauma unit of the hospital. She wanted to go to the police and report them. Her friend advised her to obtain a medical certificate before she went to the police but the treating doctor was very negative when she found out she was bashed up for being a [Christian]. The certificate that she received stated she was [injured participating in an unrelated activity]. For ½ an hour she pleaded with them to give her a certificate. She said in an aggressive tone, it was you who changed your faith.
For the last 3 years, after the 2011 rape, she started thinking of leaving the country. She could not contain her sexual feelings and could not hide her faith. She did not know how to leave the country and all that time she was in a severe depression. The last straw that made her act was at end of July 2013 she was caught again by the [number] men who raped her. They caught her quite suddenly. She did not see them and they started to pressure her and threatened her with a knife. They said you are still a [Christian] and then they threatened that if they see her again looking like she did, then they would kill her. One of them and she thinks he was a ring leader and he reminded her his [relative] worked for the police and that was the last straw so she made a decision to leave Kyrgyzstan. Asked if she reported it to the police she said that she was frightened to do so as she believed he had a [relative] working for the police and there have been a number of cases that whenever women were subjected to sexual violence by men, the police did not help then and would close their eyes to them. She also feared that is she told the police why she was raped and bashed up because of the way she looked and a [Christian] and they would close their eyes.

Having lived in Australia for the past 2 years she gained confidence in being herself and she is very happy that she has taken a huge step to be proud that she is gay. She could not believe she could tell people about herself and she has now done that. Having lived in Australia for 3.5 years she understood that god still loves her though she is gay and he closed his eyes. Now she has gained confidence to tell a woman that she loved her and it happened for the first time in her life and she did not believe it could happen. Living in Australia she feels totally safe. She could see evidence the Australia government and police support LGBTI people and she is really surprised to see a range of events for LGBTI people.
REASONS AND FINDINGS
In addition to the country information cited in the decision made by the delegate and in submissions made by the applicant, I have consulted information cited in this decision.
On the basis of her passport of Kyrgyzstan I accept that the applicant is a national of Kyrgyzstan and not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than Kyrgyzstan. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Kyrgyzstan is the applicant's “receiving country” for the purposes of s.36(2)(aa).
In her PVA dated [in] June 2014, her Statutory Declaration dated 27 July 2016 and Statutory Declaration dated 2 August 2017 the applicant opines that she has a well-founded fear that if she is forced to return to the Kyrgyz Republic, she will be seriously harmed on the basis of her religion, being a [Christian].
In a submission dated 2 August 2017 and at Tribunal hearing the applicant raised an additional claim based on her sexual orientation (a lesbian).
I found the applicant to be a truthful witness and I found the applicant's evidence to be overall consistent. I note that there was nothing significant in the applicant's evidence which was inconsistent with independent country information.
The applicant has provided evidence about her involvement in [a Christian] church related activities. I am satisfied that the applicant was involved in those activities. I am satisfied that the applicant is a [Christian] who lived in Kyrgyzstan. I accept that the applicant was born in [City 2] and [details of upbringing]. She was sent to college where she was trained as [Occupation 1], completed [details of education]. She joined [a national sports team] of Kyrgyzstan and started studies for a tertiary degree [at School 1] and training to becoming an education teacher. She started working after completing her [course], and worked as [a teacher] for 2 years to pay back for her degree. She worked in [a school] and at the same time was working as [another occupation] until she came to Australia.
I accept that the applicant first learned about Christianity from [Christians] who visited her [during her upbringing] and she there learned about God. I accept that she had a desire to be with Christians and she continued to attend the same church, except for the last 12 weeks before she left Kyrgyzstan because she was seriously depressed. Upon her arrival in Australia she attended the [Christian] church at [location in Australia]. They do not speak Russian, but they spoke [a] language she does not speak. She could not find a [Christian] church that spoke Russian She did not continue going to the church in [Australia] because over the last 2years she found out that the church was negative toward LGBT people. She has lost her desire for the [Christian] church but she does not want to lose God. She wants to be herself. Her sexual orientation is gay, which she hide for many years from the church and the people because of fear. She also wanted to be free in her faith without fear of telling people what God she believed in.
I accept that the applicant is a Lesbian. I accept that she did not disclose her sexual orientation claim to the Department in previous statements or during her interview. I note that the applicant did suggest to the Department that she was perceived to be a Lesbian due not being appropriately dressed. I accept that due to the applicant’s negative experiences in the Kyrgyz Republic she was concerned that the Department would draw adverse inferences if she revealed that she was a Lesbian. I accept that lesbians or Lesbian, Bisexual, Gay, Transgender and Intersex [LBGTI] people are a particular social group in Kyrgyzstan and I accept that the applicant is a member or is perceived to be a member of that group.
The applicant was a victim of a physical assault in [2003] when she was assaulted by [a number of] male Kyrgyz students resulting in her hospitalisation for [a number of] days. These men made statements about the applicant’s Christian faith and her betrayal of Allah, suggesting that the attack was motivated by her faith.
I accept that the applicant does not wear typically feminine clothing. She was physically and sexual assaulted by [number] men in [2011]. I accept that this attack was motivated by the way she looked and dressed and also because she was a Christian. The comments made by the men during the assault were "Why are you dressed like this. You are a Muslim girl" and their comments to teach the applicant "a lesson". Two years later, the same [number] men threatened the applicant with a knife and again questioned her about her dress and religion.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution[1]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection[2]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards[3]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
[1] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]
[2] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]
[3] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]
In regard to the attacks on the applicant, I am satisfied that threats were made to the applicant’s life, by unknown men, and those threats and attacks harmed and were meant to harm the applicant.
In regard to whether or not the state is complicit in the harm feared by the applicant from a non-state entity or group, ie the applicant’s attackers, or if the state of Kyrgyzstan encourages, condones or tolerates the harm, the applicant did not report the incidents to the police. Her explanation for not doing so was because of her fear of receiving the same treatment at the hands of the police. The independent evidence before me, the US State Department Report 2004, indicates that in 2003 in the Republic of Kyrgyz[4]
the law specifically prohibits domestic violence and spousal abuse; however, violence against women remained a problem. Interior Ministry statistics indicated that during the year over 200 sexual crimes against women were reported, but actual figures were probably significantly higher. NGOs estimated the number could be up to ten times the reported figure. Many crimes against women were not reported due to psychological pressure, cultural traditions, and apathy of law enforcement officials.
Rape, including spousal rape, is illegal. Activists noted that rape was more common, although it was not clear whether this was due primarily to increased reporting of attacks. There were 136 rapes reported during the first 8 months of the year, 92 of these cases resulted in prosecutions.
[4] US State Department Report Human Rights Practices, Republic of Kyrgyz 2004
In 2011 the US State Department Report 2012[5] provides similar information to that provided in 2004 and further states:
Corruption remained endemic at all levels of society. The law provides criminal penalties for official corruption; however, the government did not enforce the law effectively, and many officials engaged in corrupt practices with impunity.
The payment of bribes to avoid investigation or prosecution was a major problem at all levels of law enforcement. Likewise, law enforcement, particularly in the South, frequently employed arbitrary arrests, torture, and the threat of criminal prosecution as a means of extorting cash payments from citizens. Rape, including spousal rape, is illegal; however, as in previous years, the government failed to enforce the law effectively. Activists continued to note a growing number of rape cases, although this may have been due to increased reporting of attacks.
Many crimes against women went unreported due to psychological pressure, cultural traditions, and apathy among law enforcement officials. Human rights organizations reported that police in Osh continued to arrest individuals for the “crime” of homosexuality even though the government decriminalized consensual same-sex sexual conduct in 1998.
From February to October, the NGO Labrys recorded 18 cases of police extortion of gay persons in Osh. The majority of cases included physical abuse. Once arrested and known to the police, lesbian, gay, bisexual, and transgender (LGBT) persons were susceptible to a continual cycle of extortion and exploitation. Because same-sex sexual conduct is a societal taboo in the South, it was nearly impossible to mount legal challenges to such abuse.
According to local NGOs, LGBT individuals faced severe oppression, and the government failed to protect their rights. LGBT persons whose sexual orientation was publicly known risked physical and verbal abuse, possible loss of work, and unwanted attention from police and authorities.
[5] US State Department Report Human Rights Practices, Republic of Kyrgyz 2012
I accept that the applicant has refused to conform to socially conventional gender roles. Photographs show her wearing her hair short and I accept that she dressed in typically non-feminine clothing. She is unmarried and works to support herself. She has excelled in sport and played [a sport] at a professional level. I accept that even though she did not live in a Lesbian relationship in Kyrgyzstan these characteristics have made the applicant a target as a perceived Lesbian and a person who does not conform to traditional cultural mores.
The applicant travelled out of Kyrgyzstan with her sporting team and returned to Kyrgyzstan. I am satisfied that her return o Kyrgyzstan does not indicate she lacked a subjective fear of persecution in light of the countries that she travelled to, being [a number of countries], whose protection of the LGBTI community is not any greater than Kyrgyzstan.
In light of the above independent information that indicates that LGBTI individuals faced severe oppression, the government failed to protect their rights, they risk physical and verbal abuse and unwanted attention from police and authorities, I am satisfied that the applicant was not able to report the assaults due to the police due to a real risk of physical and verbal abuse from the state. I therefore find that the state of Kyrgyzstan tolerated the harm.
The incidents referred to in 2008 and 2010 were, in my view, deliberate and therefore systematic. In consideration of the evidence cumulatively, I do not consider it far-fetched or implausible that the threats by the men who attacked her, had a religious motivation and a motivation based on the applicant’s sexual identity as a perceived lesbian.
I am therefore satisfied the applicant had a fear of serious harm at the time she departed from Kyrgyzstan.
Applicant’s return to Kyrgyzstan
I am required to assess whether there a real chance of serious or significant harm occurring in the reasonably foreseeable future on the applicant’s return to Kyrgyzstan, I have considered the applicant’s account of her experiences and circumstances in the context of country information in relation to Kyrgyzstan.
The treatment of [Christians] in Kyrgyzstan will vary depending on individual circumstances. Although there are no legal prohibitions on Christian rituals or practices, [Christians] reportedly face official and societal discrimination. The applicant was able to graduate from university, and obtain work as a teacher, to date.
I accept that the applicant is a [Christian] and that the applicant was involved in Christian-related activities, including proselytising and that if she returned to Kyrgyzstan, she will continue to engage in those activities.
The applicant is an ethnic Kyrgyz, who are primarily Muslim. I accept that she faces a significantly higher risk than other pre-dominantly Christians such as [other ethnicities] as I accept that she is imputed to be an apostate. I accept that the Kyrgyz Republic is steadily becoming a less secular and more Islamic society[6]. Since the Soviet era ended, there has been a near 60-fold increase in registered mosques. Islam has become a central factor in public life since the end of the Soviet era. The increased Islamification of the Kyrgyz Republic has been identified by the International Crisis Group stating that "Islam has been incorporated into the "patriotic" identity in a way that justifies patriarchal Kyrgyz traditions." I accept that the applicant fears serious harm for being a Christian and an apostate.
[6] International Crisis Group, 'Kyrgyzstan: State Fragility and Radicalisation', Crisis Group Europe and Central Asia Briefing N°83, (3 October 2016) 3
The independent information before me indicates that although the Kyrgyz constitution purports to provide for religious freedom for all citizens, the Kyrgyz Republic's 2009 religion law violates international standards of freedom of religion or belief by criminalizing unregistered religious activity and imposing registration requirements, including that a religious group must include at least 200 resident citizens as founders. The Religion Law bans "actions directed to proselytising of the faithful from one denomination to another, as well as any other illegal missionary work". Kyrgyzstan[7] continues to deny state registration – and so state permission to exist – to many belief communities which apply for it, and to ban groups of people from exercising freedom of religion and belief without state permission. Protestant pastors state that they "live and exercise freedom of religion and belief with constant fear. Jehovah's Witnesses have been subjected to torture and put on trial for illegal religious activity. Forum 18, a Norwegian based NGO that promotes religious freedom, reports that "Several Protestant Pastors, who lead communities without state permission to exist, told Forum 18 in 2016 that they "live and exercise freedom of religion and belief with constant fear". No Catholic, Protestant, Jehovah's Witness or Ahmadi Muslim communities have been registered. Amendments to the Religion Law are currently been proposed which are even more restrictive regarding registration and introduce full state censorship of all religious literature being produced or distributed in Kyrgyzstan[8].
[7]
[8] Felix Corley, 'KYRGYZSTAN: Religious censorship, sharing faiths ban?' Forum 18 (online), 31 May 2017 id=2283
In relation to Lesbians and the LGBTI community generally, in the Kyrgyz Republic they face a serious threat, not only of alienation, but of violence and physical abuse. There remains a strong social taboo against homosexuality in the Kyrgyz Republic. Many people perceive homosexuality as a "tragedy" and a "disease." Until 1999, "homosexual orientation" was included in the "personality disturbances" section of the diagnostic manual issued by the Ministry of Health.
Many LGBT people fear disclosing their sexual orientation to their families and employers and try to conceal it from others at any cost. Those who go public about their sexuality risk "...physical and verbal abuse, possible loss of work and unwanted attention from the police and authorities."[9]
[9] IRIN News, 'KYRGYZSTAN: Focus on gay and lesbian rights', IRIN News (online), 11 January 2015
In March 2014, the Kyrgyz parliament published a draft bill imposing criminal and administrative sanctions for distributing information about homosexuality or LGBT issues in a way that creates "a positive attitude toward non-traditional sexual orientation. "This bill has legitimised negative attitudes towards LGBT people. Following the proposed bill, there was a near 300 percent increase in attacks against the community.[10] The bill is currently awaiting its third and final reading in parliament before being passed into law, but its previous two readings have been passed by parliament with extremely large majorities (79 for, 7 against and 90 for, 2 against respectively).[11] The population in general is very critical of this category of citizens".[12]
[10] Katie Arnold, 'Curtain Falls on Bishkek's Lone LGBT Club Amid Worsening Atmosphere', Radio Free Europe Radio Liberty (online), 22 June 2017 Catherine Putz, 'Kyrgyz Anti-Gay Propaganda Law Moves Forward', The Diplomat (online), 26 June 2015 < Human Rights Watch, "They said we deserved this"— Police Violence Against Gay and Bisexual Men in Kyrgyzstan (2014), 20

According to the United States Department of State, LGBT organisations in the Kyrgyz Republic report numerous acts of violence against LGBT persons. A recent survey by the LGBT organization Kyrgyz Indigo found that 84 percent of respondents had experienced physical violence, while 35 percent were victims of sexual violence. Kyrgyz Indigo described the results as "very alarming" noting that they indicate a "tendency of growth from year to year."[13]

[13] Katie Arnold, 'Curtain Falls on Bishkek's Lone LGBT Club Amid Worsening Atmosphere', Radio Free Europe Radio Liberty (online), 22 June 2017 <>

A report by Human Rights Watch[14] also noted the prevalence and severity of violence against LGBT persons, perpetrated by both police and members of the community:

For example, from January through August 2013, the Bishkek-based LGBT organizations Labrys and Kyrgyz Indigo documented at least 11 attacks on lesbian, gay and bisexual people based on their sexual orientation. Of these, five gay men and two lesbians were victims of police abuse. Police arbitrarily detained all five of the gay men in public places and forced them under threat of disclosure of their sexual orientation to hand over money. The police detained the two lesbians who were in a park, filmed them while they asked them personal questions, and forced them to pay 4,000 soms (US$ 80) in order for the police to delete the videos. In four other cases, the perpetrators were unidentified assailants. In one case from July 2013, four men followed a 20-year-old gay man as he left a store, dragged him into a nearby botanical garden in Bishkek, and raped and beat him, breaking his hand and giving him a concussion. The man did not report this incident to the police.
[14] Human Rights Watch, "They said we deserved this"— Police Violence Against Gay and Bisexual Men in Kyrgyzstan (2014), 14 <

Although homosexual relations are not formally criminalised in the Kyrgyz Republic, police continue to target the LGBT community. According to the United States Department of State 2017, "Members of the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community reported police regularly monitored LGBTI chat rooms and dating sites and arranged meetings with LGBTI users of the sites in order to extort money from them." In addition, Police often target areas where LGBT people frequent, such as bars, and threaten them with violence, arrest them and threaten to reveal their sexuality to their families unless they can offer the authorities a bribe. The blackmail of LGBT people by police is widely known and is one of the channels of illegal income for the police.
Police who commit abuses are not held to account, creating a climate of impunity that encourages further abuse." Victims are reluctant to report police abuses to the authorities, fearing retaliation or the disclosure of their sexual orientation to family members and/or employers by the police." Despite numerous accounts of brutality, Human Rights Watch was not able to identify a single case in which a police officer was held accountable for the arbitrary detention, torture, or ill-treatment of a gay or bisexual man[15]. I have found no independent evidence to suggest that such abuses are not also perpetrated against Lesbians. I accept that the repeal of criminalisation provisions, has not reduced the persecution suffered by LGBT people from public authorities, politicians and the general Kyrgyz public. I accept that the general population continues to actively victimise LGBT people[16].
[15] Human Rights Watch, "They said we deserved this"— Police Violence Against Gay and Bisexual Men in Kyrgyzstan (2014) 35, 45 — 47
[16] Emily Singer Hurvitz, 'Regions [notes]' (2012-2013) 20(3) Human Rights Brief 56, 63
The applicant has revealed her identity as a Lesbian since coming to Australia. I have considered whether pursuant to s.91R(3) I must disregard all conduct undertaken in Australia. I give the applicant the benefit of the doubt and accept that her revealing her identity as a Lesbian in Australia was not for the sole purpose of furthering her refugee claim. I therefore do not disregard this conduct in my assessment of her well-founded fear of persecution.
I am satisfied that if the applicant were to return to Kyrgyzstan she would continue her involvement in [Christian] and/or Christian activities and in light of her being perceived as a Lesbian, there is a real chance that she would suffer serious harm. I am satisfied that the applicant is unable to relocate to another part of Kyrgyzstan as I am satisfied that there is real chance that LGBT people will be victimised, and suffer serious harm, in any part of Kyrgystan.
In consideration of the evidence as a whole, I am satisfied that the applicant has a well-founded fear of persecution if she returns to Kyrgyzstan now or in the reasonably foreseeable future and it would not be reasonable for her to relocate to other parts of Kyrgyzstan. I consider that the persecution which she is at risk of suffering involves serious harm as required by s.91R(1)(b) of the Act, in that it involves significant physical harm, harassment or ill-treatment.
I find that the applicant's [Christian] religion and her membership of a particular social group ‘lesbians or LBGTI people in Kyrgyzstan’, would be the essential and significant reasons for her fear of persecution as required by s.91R(1)(a) of the Act. I am satisfied that the persecution the applicant is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for Convention reasons.
There is no evidence before me to suggest that the applicant has a legally enforceable right to enter and reside in any other country other than Kyrgyzstan and therefore I find that the applicant is not excluded from Australia's protection by s.36(3) of the Act.
On the basis of all of all the evidence before me, I am satisfied that there is a real chance that the applicant will suffer serious harm now or in the reasonably foreseeable future if she were to return to Kyrgyzstan for reasons of her religion and her membership of a particular social group, Lesbians in Kyrgyzstan.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Lilly Mojsin
Member

RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

[2017] AATA 2088

24 August 2017

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