1512940 (Refugee)

[2018] AATA 2788

1512940 (Refugee) [2018] AATA 2788 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512940

COUNTRY OF REFERENCE:                  Uganda

MEMBER:Jane Marquard

DATE:8 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2018 at 9:55am

CATCHWORDS

Refugee – Protection Visa – Uganda – Member of a particular social group – Lesbians in Uganda – Asylum application in Denmark accepted – Fears discrimination and racism in Denmark – Applicant has the right to enter and reside in Denmark – Effective protection measures available in Denmark – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 5AAA, 65, 438

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Appellant S396/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMAC v SZRHU [2013] FCAFC 91
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

V856/00A v MIMA (2001) 114 FCR 408

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

OVERVIEW

1. The applicant is a citizen of Uganda. She was born in [Town 1], Kampala in [year]. She first arrived in Australia on 4 December 2014 on a [temporary] visa after travelling to Australia from Denmark, where she had been granted asylum. She applied for a protection visa pursuant to s.65 of the Migration Act1958 (the Act) on 18 December 2014.

2. The application was refused by a delegate of the Department of Immigration and Border Protection (the Department) on 27 August 2015. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

3. In summary, the applicant claims that she fears persecution in Uganda because she is a lesbian. She also claims that she is unable to return to Denmark, and also fears persecution there.

4. Same sex relationships are criminalised in Uganda, and there is significant societal violence against gays and lesbians. Denmark is tolerant of same sex relationships and has laws to prevent discrimination on the basis of sexuality and race, although there have been some crimes against gays, lesbians and immigrants.

5. The Tribunal has concluded on the basis of all the evidence before it, summarised below, that the decision under review should be affirmed as the applicant has the right to enter and reside in Denmark.

   CLAIMS AND EVIDENCE

   Evidence before the Department

6. A summary of the evidence provided by the applicant to the Department in her application forms, and supporting documents, is set out below:

   ·She is an ethnic [deleted] and a Christian. She speaks Luganda and English. She finished primary then high school in [Town 1] in [a certain year];

   ·Her father has passed away and her mother is living in [Town 1]. She also has a sister, brother and cousin living there;

   ·From June 2007 until 2013 she worked as [an occupation] and in March 2008 also established her own business selling [goods];

   ·She was forced to marry a man called [Mr A] by her mother, and had a daughter. Four months after the marriage she returned to the village and left her husband. She is unaware of her husband’s whereabouts, but her daughter lives with her mother;

   ·She is a lesbian and had to live that part of her life covertly in Uganda;

   ·She left Uganda because she was engaged with a group of girls recruiting students to ‘sugar mummies’;

   ·Her family abandoned her because she was a lesbian. The leader of her village chased her from the village;

   ·She moved in with her girlfriend named [Ms B] in [Kampala]. They both worked in a [workplace], where they met most of the girls with whom they collaborated;

   ·They received threats from locals near their home, but did not take them seriously. Problems began when a girl [joined] their group as her father was a policeman;

   ·On 26 July 2013 the villagers wanted them dead and came to their house and beat the women who were there. The applicant was at work at the time. One of their girlfriends was beaten to death. [Ms B] was taken by the police and the applicant heard that she was in prison. The applicant fled to [Country 1] and connected to a lady who took her to Denmark [in] July 2013. The applicant had never travelled before and relied on this woman to make arrangements. She stayed in hiding with this woman for three weeks and then travelled with her to Denmark. There, the woman abandoned her;

   ·With the help of a taxi driver she approached the Danish authorities where she sought asylum and was granted temporary refugee status for five years. The Danish travel document permits her to return and reside in Denmark;

   ·In Denmark she experienced racism, language difficulties and torture. She wanted to commit suicide. She had no friends, and as a refugee could not study or work;

   ·She did not have any lesbian relationships in Denmark except for a few months when she was ‘friends’ with a girl;

   ·Her friend [Mr C], an Australian citizen sponsored her to come to Australia. She travelled to Australia, [arriving] on 4 December 2014;

   ·She now resides with [Mr C] as his guest;

   ·She has not explored the gay or lesbian scene in Australia;

   ·She appreciates that the Danish government gave her protection but she has been unhappy there. She does not want to return to Denmark due to the language difficulties and racism. She may commit suicide there;

   ·She spent a year in Denmark from 2013/14 stating that this was a rescue due to the problems she had in her country. She claimed to have a right to enter and reside in Denmark;

   ·She is seeking asylum as her life is in danger and she has been mistreated.

7. She provided copies of:

   ·Danish Travel Document (Convention of 28 July 1951) Titre De Voyage, issued [2014] expiring [2019], stating ‘the holder is authorised to return to Denmark during the validity of the document’. It also states ‘should the holder take up residence in a country other than that which issued the present document, he must if he wishes to travel again, apply to the competent authorities of his country of residence for a new document’;

   ·Danish Residency Permit expiring [date] 2018, stating that the card should always be carried while residing in Denmark and the holder of the permit was entitled to work;

   ·Danish Asylum card stating that it was proof that she had sought asylum in Denmark;

   ·Danish Health Insurance card;

   ·A Medical Certificate dated 28 July 2015 from a doctor at [City 1, Australia] Hospital stating that the applicant had [a certain illness], with an unknown date of onset. She had surgery [in] July 2015.

   Departmental decision

8. A copy of the decision by the delegate of the Department dated 27 August 2015 was provided to the Tribunal by the applicant.

9. The Department found that the applicant had a right to enter and reside in Denmark and therefore Australia did not have protection obligations to the applicant.

   Evidence before the Tribunal

10. The applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments by video from [City 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Luganda language. The applicant indicated that she was satisfied with the interpreter. A summary of the evidence provided by the applicant to the Tribunal in hearing and supporting documents is set out below:

    ·She had [a certain illness] in July 2015, and was operated upon. She now goes for check-ups every six months. She is well but has had pain on her right side. She will be going for a scan for this soon;

    ·She was born in [Town 1], in [Uganda].  Her parents were farmers. Her father passed away a long time ago. Her mother and grandmother are still living there. She does not know where her brother is, and her sister has moved to Kampala. She is not sure if her sister is working. She is not in contact with her brother. The last time she spoke to him was before Christmas and he was in Kampala, working for [an] organisation. She has lost contact with her extended family in Uganda, and is really only in contact with her sister and mother;

    ·She attended primary and high school in the [Town 1] region until [a specified year]. She had problems in [Town 1] with her family. The villagers tried to chase her family from the village. They had a meeting and spoke about her and her family. Her mother said she should move, because people were talking about her. She had a girlfriend and people thought it was an abomination;

    ·She was first attracted to girls in primary school. Her first girlfriend was a neighbour and they just fetched water and played together. She denied that she was lesbian to her mother. Asked why the neighbours did not just think they were friends, she said that they were caught red-handed two times. She said that lesbian relationships were not allowed and they thought in the village that she was tempting the young girls;

    ·Asked how her mother felt about it, she said she was stressed. Asked if she confided in her mother, she said that she tried to. Until now she has given her ‘lots of pressure’;

    ·Asked if she had heard anything about lesbians or gay people when she was a child, she said only when she went to Kampala. However she had a relationship with a girl in the village which was a ‘connection’ but not ‘the real thing’;

    ·After one ‘big incident in her village’ in 2007, she left for Kampala without telling her mother. Her mother had tried to find a man for her. So she ran away and left the baby with her mother. She was not married. The father was [Mr A]. She had a relationship with him for a few months, not even a year. He has passed away;

    ·After she left home, she went to Kampala and worked in a [workplace]. She also sold [goods]. She lived in Kampala until her departure for [Country 1] and then Denmark;

    ·Asked what she was doing between 2004 and 2007 she said that she was doing nothing. Asked if she was in the village and she said that she could not recall. She was not working. She gave birth to her child in [a specified year];

    ·She had a girlfriend called [Ms B] in the city. She met her at [work]. She was with her from 2007 until 2013. When she met her, she could see that she was a lesbian. She can look at someone and know. She moved in with her not long after meeting her. Her family came from western Uganda, but she did not meet them;

    ·Asked if her friends in Kampala knew they were in a lesbian relationship, she said that many girls came to her place of work to meet other girls. Girls from the university were recruited to come meet other girls at their house;

    ·She was asked if she was aware of any lesbian groups or associations in Uganda. She said that people could not come out or they would go to prison or be harmed. She only knew the girls she associated with. She did not attend gay events, as her friends made their own parties;

    ·Her mother did not visit her. Asked if she told her mother about the relationship she said she did not tell her, but her mother found out. Her mother told her sister that she did not want anything to do with the applicant. When she was in Denmark she got back in touch with her mother. Asked if her mother was accepting of her now, she said that she was. Her sister is also accepting of her sexuality;

    ·In Denmark she had a relationship with a [girl] for two years. In Australia, she has had a relationship in private with a woman for two years, meeting with her every week. She met her in [City 1] in a pub. There are no lesbian pubs in [City 1], they are mixed. She lived in [a town in Australia] when she first came to Australia with friends. She is not living with them anymore, she is now living alone in [City 1];

    ·She is a member of Mardi Gras but did not attend, and is not in any other lesbian clubs or groups.  She had tried lesbian websites but did not want to pay. She cannot remember the names of the websites;

    ·She was asked to describe the incident [in] July 2013. She said that most lesbian girls lived in their parents’ homes so they would visit her home to socialise. Neighbours talked about them as girls came and went. One of the girls had a father in the police force. One evening [Ms B] and two girls were at her home, but she was at work. The father of one of the girls came to the house and more than ten people from the neighbouring houses accompanied him, and started beating the door down. They lost one girl, [who] was killed after [items] were thrown at her. Asked who told her that this was happening, she said it was the girls. The police arrested [Ms B], and she was not released, she was kept in prison. The applicant tried using the Red Cross to find her, but has been unable to do so. Asked if she had spoken to [Ms B]’s family, she said that she did not have contacts. She also had no contacts with the girls in Kampala. She left Kampala without going back to the house.  A lady in [Country 1] [helped] her out, and her sister gave her money. She went to [Country 1] by bus without a passport;

    ·She does not know if the police investigated the killing of the girl. The incident was reported in the media, with their names listed, but she does not have copies of the reports;

    ·She went to live in Denmark and was granted a residence permit as a refugee. At the time she did not care where she went. She was welcomed in Denmark, and given a place to stay. But there was a lot of racism from the neighbours and she felt isolated. People were making comments about her. She told a friend in Australia about it. He said that she should attend [an event] and he arranged it and she had Christmas with him. She felt better in Australia as she could communicate and people were friendly. So she applied to stay. She had met this man in Uganda and he paid for her. They were friends and not in a romantic relationship;

    ·She understood that she could renew her permit in Denmark, which was granted in [2013] for five years, once five years had passed;

    ·She was given a Danish identity card, health insurance card, accommodation and vouchers for food, and an allowance to attend language school;

    ·A few months prior to the Tribunal hearing, some people followed her child in Uganda ‘because of her’. She told her sister to put her child into boarding school. Asked why people would be interested in her child, she said that it was because of her, but she does not know anything further;

    ·In an undated letter to the Tribunal, the applicant stated that if she left Denmark for more than six months her protection visa would be automatically cancelled.

    Independent country information

11. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the assessment section below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

12. In coming to a decision the Tribunal has taken into account evidence before the Department and this Tribunal, as summarized above, as well as independent country information.

13. A summary of the relevant law is set out in Attachment A and an extract of the legislation is set out in Attachment B.

14. The issue in this case is whether the applicant meets the refugee criteria, and if not, whether she is entitled to complementary protection.

15. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]  

    [1] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

16. The assessment of the claims and evidence is set out below.

    Nationality

17. The applicant provided a copy of her passport and gave evidence that she was a citizen of, and born in, Uganda. It was clear that she was familiar with the culture, history and geography of Uganda, and the Tribunal accepts on the evidence before it, including her personal particulars, that she is a citizen of Uganda, and that Uganda is the receiving country for the purposes of the refugee and complementary protection provisions.

    Section 438 Certificate

18. The Department had issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 76 and folios 78 to 81 of the Department file would be contrary to the public interest, because these folios contained information relating to “an internal working document and business affairs”. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that, in any event, the information in these folios is not relevant to this decision, as it is information relevant to identification and visa history, and was not of probative value to this review. The Tribunal disclosed the general nature of the information to the applicant and has not taken account of information in these folios.

    Findings of fact

19. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, concern about the outcome, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[2]

    [2] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, >

    In the applicant’s case, she has given evidence about her lesbian preferences and relationships. The Tribunal acknowledges that giving evidence about private matters concerning sexuality is very difficult, exacerbated in the applicant’s case by the negative attitudes to lesbianism prevalent in Ugandan culture. The Tribunal has taken this sensitivity into account in assessing her evidence.

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairsv Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.    

2. The Tribunal also accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[3]

   [3] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

3. Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191], ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

4. The Tribunal had some concerns about aspects of the applicant’s evidence. Firstly, she told the Department that she had been married in Uganda, but told the Tribunal she was not married. The Tribunal accepts her explanation that culturally by living with a man it could be considered to be a marriage. Secondly, the Tribunal also questioned the applicant about why she told the Department that she had no relationships with women in Denmark or Australia but she told the Tribunal at hearing that she had a two year relationship with a woman in Denmark and a two year relationship with a woman in Australia. The Tribunal is prepared to give the applicant the benefit of the doubt that the relationship in Denmark was ‘not serious’ even though it was for two years. In relation to the relationship in Australia, the Tribunal accepts she has been in this relationship since the Department hearing. The Tribunal also had some concerns as to why the applicant did not contact her girlfriend, [Ms B]’s family or friends to try and find her, after she disappeared, given that she was so close to her. She said that she did not have any contacts, but this seems unusual given the length of their relationship. Further, she said she was unaware of the gay and lesbian groups in Uganda, even though the fact that gay and lesbians are persecuted in Uganda would suggest that the small community of gays and lesbians would probably know of groups such as FARUG: Freedom and Roam Uganda, first LGBTI group, Queer Youth Uganda, and/or the Coalition of African Lesbians.[4] Notwithstanding these concerns about aspects of the evidence, the Tribunal is satisfied, taking into account difficulties in providing evidence as discussed earlier, that the applicant has always been interested in women rather than men, and that she had a serious lesbian relationship in Uganda. The Tribunal is satisfied that her lesbian preferences caused rifts in her family, and comments and insults from villagers led to her leaving her village to live in the city. The Tribunal is also satisfied that lesbian women met at her home and that this attracted interested from neighbours. Her evidence about these matters has been consistent in accounts to the Department and Tribunal.

   [4] FARUG website, >

   The Tribunal is also satisfied that a group of villagers attacked her home because they suspected lesbian activity there, and that a woman died, and her friend [Ms B] was arrested. While the Tribunal has been unable to locate media reports about this incident, which would have been expected, the Tribunal accepts that not all of these police incidents would reach the media. Furthermore, while the Tribunal found it unusual that the applicant did not locate [Ms B], it is possible that [Ms B] was arrested and kept in prison, or was released, and went into hiding somewhere.

5. The Tribunal is satisfied that the applicant escaped to [Country 1], and then to Denmark because she feared persecution as a lesbian in Uganda.

   Refugee criteria – there must be a real chance of persecution

6. A person is a refugee if owing to a well-founded fear of persecution, they are unable or unwilling to avail themself of the protection of that country.

7. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

   ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   ·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 above; and

   ·that persecution must relate to all areas of the country.

8. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention,[5] this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act, provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

   [5] 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).

9. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[6] It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.[7]

   [6] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.

   [7] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.171 at [1180].

   A fear of being persecuted

10. The Tribunal is satisfied that the applicant has a fear of being persecuted, which was evident from the emotion she displayed in talking about the events of the past, and the attitudes to lesbianism in Uganda. Further, this is a reasonable reaction when considering the country information, discussed below, which indicates that Uganda has a hostile attitude towards people with same sex preferences.

    For one of the reasons set out in the legislation

11. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).

12. In Applicant A v MIEA, Gummow J cited Ram with approval and added that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, membership of a particular social group or political opinion.[8] In MIMA v Haji Ibrahim, McHugh J similarly emphasised that the Convention (in that case) requires the decision-maker to ascertain the motivation for the allegedly persecutory conduct which an applicant for refugee status fears.[9]

    [8]Applicant A v MIEA (1997) 190 CLR 225 at 284, per Gummow J.

    [9] (2000) 204 CLR 1 at [102].

13. It is well-established that gays or lesbians can constitute a particular social group.[10] Clearly, lesbians in Uganda are identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.

    [10] (1997) 190 CLR 225; Appellant S396/2002 v MIMA (2003) 216 CLR 473.

14. The Tribunal is satisfied that the applicant is a member of the particular social group of ‘lesbians in Uganda’.

15. The Tribunal is also satisfied, for reasons set out below, that membership of the particular social group, lesbians in Uganda, is the essential and significant reason for the persecution she may suffer.

    Well-founded fear of persecution

16. The Tribunal is satisfied that the applicant has been open about her sexual preferences in the past, and that this led to the harm she suffered while in Uganda. The Tribunal is also satisfied that if the applicant returned to Uganda she would continue to be open about her sexual preferences, and that this would lead to serious harm being inflicted upon her. This could involve prosecution by the authorities as well as societal violence without state protection. The United States Department of State reported in 2016 that same-sex conduct is against the law and the laws were enforced, and there was also significant societal violence:

    The law criminalizes consensual same-sex sexual activity, and penalties for conviction of engaging in “acts against the order of nature” are 15 years’ to life imprisonment. Conviction of the lesser charge of gross indecency carries penalties of up to 14 years’ imprisonment. The government enforced laws against same-sex sexual activity and did not address societal discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.

    Societal violence against persons based on gender, sex, and sexual orientation continued. LGBTI persons in particular were at risk of societal violence due to prevailing prejudices, misperceptions of the law, lack of legal protections, and inability to access health services. Some politicians, media figures, and religious leaders expressed opposition to basic protection and rights for LGBTI persons in arguing against same-sex marriage.

    Rather than submit cases for trial, police on several occasions arrested suspected LGBTI persons on bogus charges, forcing them to spend at least one night in jail. In most cases police demanded bribes before releasing the individuals. Police increasingly charged transgender persons with “impersonation” and subjected them to verbal abuse and harassment while in detention. The charges generally could not be successfully prosecuted, and detainees were released. Neighbors reportedly attempted to blackmail LGBTI persons by threatening to report them to police. In October 2015 police in Mongu arrested a transgender woman after a taxi driver claimed he had been tricked into having sex with her without knowing she was transgender. Although the transgender woman claimed the driver raped her, she was not provided with legal representation. She was convicted of sodomy-related charges in November 2015 and sentenced to a prison term of 15 years in September. The conviction had yet to be appealed by year’s end.

    Several groups quietly promoted LGBTI rights and provided services to LGBTI individuals, principally in the health sector. The groups held private social gatherings but did not participate in open demonstrations or marches in view of societal stigma against LGBTI persons. According to LGBTI advocacy groups, societal violence occurred, as did discrimination in employment, housing, and access to education and health care. LGBTI groups reported frequent harassment of LGBTI persons and their families, including threats via text message and e-mail, vandalism, stalking, and outright violence. Activists stated several LGBTI persons committed suicide.[11]

    [11] United States Department of State, Country Reports on Human Rights Practices for 2016, 2017,

17. Human Rights Watch reported in 2017 as follows:

    Same- sex conduct remains criminalised under Uganda’s colonial-era law, which prohibits “carnal knowledge” among people of the same sex. The new NGO law raises concerns about the criminalization of legitimate advocacy on the rights of LGBTI people. In August police unlawfully raided a peaceful pageant that was part of Gay Pride celebrations in Kampala. Police locked the venue’s gates, arrested activists, and beat and humiliated hundreds of people, violating rights to association and assembly. Police continue to carry out forced anal examinations on men and transgender women accused of consensual same-sex conduct. [12]

    [12] Human Rights Watch, World Report, 2017,

18. According to Amnesty International a number of LGBTI events have been raided by police, and the courts have refused to re-consider the Anti-Homosexuality Act:

    On 4 August, police broke up an LGBTI beauty pageant in Kampala, part of Uganda Pride. They arrested 16 people – most of them Ugandan LGBTI rights activists – who were released after about an hour. A man was seriously injured after he jumped from a sixth-floor window fearing police abuse.

    On 24 September, the police prevented more than 100 people from joining a Pride parade on a beach in Entebbe. They ordered people back onto minibuses and told them to leave the area. The participants tried to go to another beach, but police prevented them from holding the parade there too.

    The HRAPF and the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL), a coalition of 50 organizations, filed a petition in the East African Court of Justice, arguing that Uganda’s Anti-Homosexuality Act was contrary to the rule of law and the good governance principles of the East African Community Treaty. On 27 September, the Court refused to consider the petition on the basis that the Anti-Homosexuality Act had been declared null and void by Uganda’s Constitutional Court in August 2014.[13]

    [13] Amnesty International, Uganda 2016-17,

19. The UK Home Office summarises various independent sources on this subject, concluding that LGBT people experience societal harassment, intimidation, blackmail, verbal insults, physical threats, poor employment prospects, loss of accommodation and jobs, physical and sexual attacks and violence including corrective rape and some mob violence.[14]

    [14] UK Home Office, Country Policy and Information Notes, 9 December 2016,

20. An article in Spiegel Online describes the attitudes and violence in the country in 2014 following the implementation of the Anti-Homosexuality Act in February 2014:

    Michael Kawuba is sitting in his church office reflecting on tumescence. "We Ugandans get an erection when we see a beautiful woman," he says. "Anything else is unnatural."

    During the day, Kawuba works as a financial advisor, but once he is finished, he rejoins the battle against homosexuality. A friendly man of 31, Kawuba is married and has three children -- and he is not one to rant. But every second Sunday, he preaches to the Kakumba congregation. "The Bible forbade homosexuality. God rained down fire onto Sodom and Gomorrah" -- he continues in this vein for hours at a time, standing behind a wooden pulpit. The sanctuary is spacious with a roof made of palm fronds. A band including guitar, bass and drums players pumps out gospel music while worshippers sing along, sway to the rhythm and stretch their arms heavenward as they call out "praise the Lord!"

    On Feb. 24, God would seem to have finally heard their entreaties. That was the day that President Yoweri Museveni signed a law making "aggravated homosexuality" punishable with sentences of up to life in prison. A first draft of the law had even called for the death penalty. Michael Kawuba invited friends over for the event and they watched their head of state sign the new statute. "We cheered like we were watching football," Kawuba says.

    According to one survey, 96 percent of all Ugandans find homosexuality unacceptable and many are in favor of locking away gays, lesbians and transsexuals. Uganda has long been a model country in Africa: Though the regime is authoritarian, the country is stable and economically successful. Now, it has one of the most draconian anti-gay laws on the continent, trailing only Nigeria's Muslim north, Mauretania, Somalia and Sudan. Now, homosexuality is a punishable offense in 36 of Africa's 54 countries.

    The new law, following years of debate, has led to an increase in hate in the country. Though homosexuality has long been forbidden in Uganda, and gays and lesbians were often the target of abuse, nobody was locked away for it. There were even bars and clubs where they could go undisturbed. But that has now changed.

    ..Attacks against gays and lesbians now occur on an almost daily basis, with human rights activists counting more than 70 cases since the law was signed. [15]

    [15] Spiegel Online, Gays and Lesbians in Uganda under pressure after new law, 17 April 2014 >

    Considering all of these reports cumulatively, the Tribunal is satisfied that lesbians in Uganda face official prosecution as well as violence, intimidation and harassment from the community, without state protection. For these reasons, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘lesbians in Uganda’ were she to return to Uganda in the reasonably foreseeable future.

    State protection

21. The Tribunal is satisfied, based on reporting by numerous reputable organisations, including the UK Home Office, that effective state protection against community violence is not available.[16]

    [16] UK Home Office, Country Policy and Information Notes, 9 December 2016, accessed 4 December. 2017,

    Relocation

22. The applicant faces persecution by state authorities and agents, as well as the community. She would thus be unable to avoid this harm by relocating to another part of Uganda.

    Right to enter and reside in a third country

23. Under s.36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

24. However, subsection (3) does not apply in relation to a country in respect of which:

    ·the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    ·the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

25. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) of the Act are satisfied, in which case the s.36(3) preclusion will not apply.

26. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[17]

    [17] V856/00A v MIMA (2001) 114 FCR 408.

1. The applicant claims that she was granted refugee protection by Denmark in 2014, and has provided a number of documents to evidence this. This includes a Danish Travel Document (Convention of 28 July 1951) Titre De Voyage, issued [2014] and expiring [2019], stating: ‘the holder is authorised to return to Denmark during the validity of the document’. It also states: ‘should the holder take up residence in a country other than that which issued the present document, he must if he wishes to travel again, apply to the competent authorities of his country of residence for a new document’. She also provided a Danish Residency Permit expiring 9 October 2018, stating that the card should always be carried while residing in Denmark and the holder of the permit was entitled to work, and a Danish Asylum card stating that the card evidenced that she had sought asylum in Denmark.

2. The United Nations High Commissioner for Refugees Website records that Denmark is a signatory to the United Nations Convention Relating to the Status of Refugees 1951 and the Protocol 1967.[18]

   [18] UNHCR Website,

3. Information from the Danish Immigration Service on its website states that evidence of a Danish travel document is sufficient to demonstrate the right to enter and reside. Also the site indicates that: ‘If you have refugee status (that is, if you have a residence permit on the grounds of asylum) in Denmark, your residence permit can only lapse if you have chosen to return to your home country, or if you have been offered protection in a third-country.’ The Danish Immigration Service website also indicates that an applicant can apply for special dispensation where the residence permit lapsed as they were outside the country.[19]

   [19] Danish Immigration Website,

4. The Tribunal discussed with the applicant the fact that she was recognised as a refugee and granted a category P (protection) visa in Denmark, and that the Travel Document indicated that she could return and reside in Denmark. Further, it was discussed with her that the Danish Immigration Service website states that evidence of a Danish travel document is sufficient to demonstrate the right to enter and reside in Denmark. The applicant said that, as a refugee, if she leaves the country for six months, she cannot return. Recently, in [City 1], she lost her passport and contacted the Danish embassy. Officials from the Danish embassy told her that if she stayed in Australia and applied for protection, then she could not have her passport back as it had been sent to Denmark. They said that they could not get it back as she had been in Australia for over six months.

5. The Tribunal has considered the applicant’s comments carefully in light of the information provided by the Danish Immigration Service. The Tribunal is satisfied that the applicant would have the right to enter and reside in Denmark. She has not returned to Uganda, nor has she been offered protection elsewhere. She has a valid travel document valid until [2019]. According to the information provided by the Danish Immigration Service, a residence permit can only lapse if a person has chosen to return to their home country or if they have been offered protection in a third country. Forms are provided for application such that a residence permit would not be considered lapsed, including in circumstances where a person had stayed outside Denmark for an extended period of time. It again states on this form that if an individual has a residence permit as a refugee then their residence permit can only lapse if they have been granted protection in another country or if they move back to their homeland.[20]

   [20] Danish Immigration Service, 'BF2/US application form'.

6. Given this information, the Tribunal is satisfied that the applicant has a right to enter and reside in Denmark, which comprises a liberty, permission or privilege lawfully given[21] and which is a presently existing right.[22]

   [21] MIMAC vSZRHU [2013] FCAFC 91.

   [22] V856/00A v MIMA (2001) 114 FCR 408.

7. The Tribunal is also satisfied that the applicant has not taken all possible steps to avail herself of that right to enter and reside in Denmark, as she has sought protection in Australia, rather than remaining in or returning to Denmark where she could avail herself of the right.

8. The Tribunal turns now to the question of whether she has a well-founded fear of being persecuted for one of the reasons set out in the legislation were she to return to Denmark in the reasonably foreseeable future, or whether there is a real risk of significant harm if she were to be removed to Denmark. The applicant claims to fear discrimination and racism in Denmark.

9. The Tribunal accepts her evidence that she was subject to racist insults while living in Denmark. The Tribunal also accepts that she felt lonely and isolated because she did not know anyone and found the language difficult. The Tribunal accepts that she has lived in Australia for more than four years and feels at home in Australia, where she finds the people friendly.

10. The Tribunal is not satisfied however that the applicant has a well-founded fear of persecution in Denmark for reasons of race, sexual preference, or any of the other reasons set out in the legislation.

11. There have been some instances of racial and LGBTI abuse in Denmark. The United States Department of State, Report on Human Rights Practices for Denmark, reports on an incident of abuse at an asylum centre, some threats against LGBTI asylum seekers in a group lodging, and incidents of hate crime:

    There were reports of abuses at an asylum center in the Naestved Asylum Center, where the camp manager was filmed using excessive force against one of the camp residents. According to Amnesty Denmark and media sources, residents lived in fear because the manager threatened residents, confiscated telephones, and warned he would adversely influence their asylum cases. In light of the allegations, Langeland Municipality dismissed the manager in May.

    According to LGBT Asylum, there were at least 10 cases of verbal threats or physical abuse reported against LGBTI asylum seekers residing in group lodging in asylum centers across the country when their sexual identity was discovered by other residents…

    According to the 2015 Annual Report on Hate Crimes published by the National Police, authorities recorded 198 hate crimes. The report categorized 104 of the hate crimes as racially motivated and three as having unspecified motivations. The government effectively investigated hate crimes and prosecuted the perpetrators.[23]

    [23] United States Department of State, Country Information report  Denmark, 2016,

12. However, the same report indicates that Denmark is a democracy and the government dealt effectively with these crimes:

    The Kingdom of Denmark is a constitutional monarchy with democratic, parliamentary rule… The government effectively investigated hate crimes and prosecuted the perpetrators.[24]

    [24] Ibid.

13. While there may be incidents of racism in Denmark, independent country sources suggest that Denmark is a free and democratic country with little violence and harassment of citizens. The Freedom House Report for 2018 gives Denmark the very high score of 97 out of 100 for freedom, political rights and civil liberties.[25]

    [25] Freedom House, World Report, 2018,

14. Further, it is a country where refugees are well supported and there is commitment to human rights. The applicant has stated that she was given accommodation, food vouchers and funds to attend a language course. The BBC World Report states that Denmark is a country of high employment and generous social security.[26]

    [26] BBC World News, Country Profile Denmark, 14 February 2018.

15. The Danish Institute for Human Rights comment on the commitment to human rights as follows:

    Denmark has a long tradition of supporting and addressing human rights. Over time, various governments have focused on areas such as freedom of expression and religion, eliminating racism, children’s rights, torture, and more recently, corporate social responsibility (CSR).

    In 1987, the Danish Parliament created the Danish Centre for Human Rights, which was renamed in 2002 as the Danish Institute for Human Rights (Danish: Institut for Menneskerettigheder). The Institute is Denmark's NHRI (National Human Rights Institute), and as such has counterpart NHRIs in other countries.

    As a member of the United Nations, Denmark has been a party to the adoption of a number of human rights treaties such as those to abolish torture or to strengthen the rights of persons with disabilities.

    Denmark has also been a party to the adoption of a number of European documents on human rights, two of the most important being the European Convention on Human Rights (ECHR), and the creation of the European Court of Human Rights (ECtHR or ECHR) in Strasbourg.

    Under EU auspices, Denmark endorses the human rights initiatives of the European Parliament. This means that a number of measures and bodies exist in Denmark to protect civil rights.[27]

    [27] Danish Institute for Human Rights website,

16. Various sources have reported that the state has effectively investigated hate crimes. One report stated that Denmark recorded 141 racist and xenophobic hate crimes in 2016, as reported by police. Police had introduced mandatory training for police officers in issues related to hate crimes.[28] Article 81 no 6 of the Criminal Code in Denmark contains aggravating sentencing clauses if a crime is motivated by prejudice and hatred based on race, ethnicity, etc.[29]

    [28] OSCE, Hate Crime Reporting, Danish Institute for Human Rights, Hate Crimes in Denmark, 1 June 2011,

17. According to reports, the Danish law enforcement, public safety, and security services are professional, highly trained, well equipped, and effective. Denmark is well-known as a country with very little corruption, and the police are very well trained, professional, and competent. Most police officers are quite proficient in English. The Danish National Police are very proactive and responsive when dealing with all types of criminal activity. Denmark remains a relatively safe, secure country.[30]

    [30] United States Department of State, OSAC Report, Denmark 2016 Crime and Safety Report, 2 May 2016, >

    Considering all these reports, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm in Denmark for reasons of race, sexual preference, or any of the reasons set out in the legislation. As discussed earlier in this decision, ‘real chance’, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[31]  Given that the reports indicate that Denmark is a democracy, with commitment to human rights principles and civil liberties, and legislation which protects individual rights, the Tribunal is not satisfied that there is a real chance of serious harm, in the form of violence, ill-treatment or other serious harm were the applicant to return to Denmark in the reasonably foreseeable future. While the applicant may not know the language or have friends in Denmark, or she may be insulted in isolated incidents, these circumstances do not amount to serious harm for a reason set out in the legislation. Furthermore, it is clear from independent country reports that effective protection measures are available to the applicant. Such protection measures are accessible by the applicant, durable and there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system.[32] The applicant has claimed that she could not access the services as she could not speak the language. However, the sources indicate that there are English speaking police, and facilities are made available to refugees to learn Danish as well. She has also claimed that she felt depressed and suicidal. While the Tribunal understands that moving to a new country is difficult and she may have felt lonely and sad when living there last time, Denmark does have a sophisticated social security and health system and she will be able to avail herself of health, support and counselling services. As the Tribunal is satisfied that effective protection measures are available, the applicant does not have a well-founded fear of persecution.

    [31] (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.

    [32] Freedom House, 2018, United States Department of State, Country Information report  Denmark, 2016, >

    The Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant availing herself of the right to enter and reside in Denmark there would be a real risk that she would suffer significant harm. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’: MIAC v SZQRB [2013] FCAFC 33. Based on the independent sources set out above, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation. The Tribunal is not satisfied that not knowing the language or not having friends, or being insulted, would reach the level of significant harm. Furthermore, there is taken not to be a real risk of significant harm where an applicant could obtain from an authority of the country protection such that there would not be a real risk of significant harm. On the basis of the independent sources set out above, the Tribunal is satisfied that the applicant could obtain from the authorities in Denmark, including police and the judiciary, protection such that there would not be a real risk of significant harm.

18. The Tribunal has also considered whether the applicant would be returned to a country where she has a well-founded fear of being persecuted or a well-founded fear of being returned by Denmark to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm. The Tribunal is not satisfied that the applicant would be returned to Uganda by Denmark, or to another country where she would have a well-founded fear. The Tribunal is not satisfied that Denmark would return the applicant to Uganda or another country, considering the assurances provided by the Danish Immigration Service that a residence permit would only lapse if an applicant chose to return to their home country, or if they had been offered protection in a third country. Furthermore, as set out earlier in this decision, Denmark is a signatory to a number of international treaties and the Refugees Convention, which would prohibit refoulement in these circumstances.[33]

    [33] UNHCR Website, >

    The Tribunal finds therefore that the applicant has a right to enter and reside in Denmark and has not taken all possible steps to avail herself of that right. Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in Denmark, and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Denmark. The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where she has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Denmark to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm. Accordingly, Australia does not have protection obligations in respect of the applicant according to s.36 of the Act.

    CONCLUDING PARAGRAPHS

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Jane Marquard
    Member

    
    

    ATTACHMENT A – SUMMARY OF RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

23. 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, 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.

24. 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.

25. 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 themself 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).

26. 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, which are extracted in Attachment B.

27. 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), which are extracted in Attachment B.

    Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

   ATTACHMENT B –  Extract from Migration Act 1958

   5 (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.

   …

   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 them 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 family

   For 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 family

   For 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …