1509351 (Refugee)

The applicant sought a protection visa, claiming a well-founded fear of persecution in Kyrgyzstan. The dispute centred on whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and the Refugees Convention. The matter was before the Tribunal, with Member Lilly Mojsin presiding.

The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of religion or membership of a particular social group, and if the Kyrgyz authorities were unable or unwilling to offer protection. Specifically, the Tribunal had to consider whether the applicant's conversion to Christianity, her active participation in church activities, her perceived association with homosexuality due to her masculine dress and sporting interests, and the general societal attitudes in Kyrgyzstan constituted grounds for protection.

The Tribunal reasoned that the applicant's conversion to Christianity and her subsequent open practice of this faith placed her at risk of serious harm in Kyrgyzstan, where there is a prevailing negative attitude towards Christians, particularly those of Kyrgyz ethnicity. The Tribunal found that the attacks and threats she experienced, including physical assaults and the discontinuation of her employment due to her religious activities, demonstrated that persecution was not only threatened but had occurred. Furthermore, the Tribunal considered that the applicant's masculine dress and sporting lifestyle, which led to her being perceived as potentially homosexual, also exposed her to negative societal attitudes and potential harm. The Tribunal concluded that the Kyrgyz authorities were unable or unwilling to protect the applicant from such persecution, citing the lack of effective recourse through the police and the general societal climate.

The Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention. Accordingly, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.