1514524 (Refugee)

[2017] AATA 1190

1514524 (Refugee) [2017] AATA 1190 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514524

COUNTRY OF REFERENCE:                  Cameroon

MEMBER:Jane Marquard

DATE:25 July 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 25 July 2017 at 12:45pm

CATCHWORDS
Refugee – Protection visa – Cameroon – Social group – Homosexual men – Past social and workplace discrimination – Warrant for arrest – Homophobia prevalent – Criminal penalties – Relocation not possible – No state protection

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A), 36(2B), 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
Applicant A v MIEA

(1997) 190 CLR 225
(2003) 216 CLR 473

Appellant S396/2002 v MIMA

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

1.    The applicant is a citizen of Cameroon.

2.    He first arrived in Australia [in] April 2014 on [student] visa.

3. He applied for a Protection visa under s.65 of the Migration Act 1958 (the Act) [in] September 2014.

4.    A delegate of the Minister for Immigration (the Department) refused to grant the visa [in] October 2015.

5.    This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

CLAIMS AND EVIDENCE

6.    The applicant provided the following information to the Department:

• He was born in [year] in [Town 1], Southwest region, Cameroon;

• His mother and [Sibling 1] are still living in Cameroon;

• He went to school in [Town 1], then [another town], finishing in 2005;

• He obtained [tertiary qualifications] between [years]. One was in [studies], and the other was in [other studies];

• In 2008 he moved to [Town 2], Southwest region, where he resided until his departure from Cameroon in 2014;

• He worked as [occupation] for [a] Corporation in [Town 2], Southwest region from 2007 until 2010. From 2010 until 2014 he was unemployed;

• He left Cameroon because of the mistreatment of people around him because he was classified as gay. Homosexuality is criminalised and he did not want to live life as a criminal;

• He was thought of as gay because he had some homosexual friends in prison or who had died;

• He was part of a group of about [number] men who referred to themselves as “[name]”, met twice to talk about gay rights, had membership cards, and dressed in an effeminate manner. After meeting twice they disbanded due to fear they would be discovered;

• They had nicknames, for example he was referred to as “[name]” and one his friend’s [was] known as “[name]”;

• He was actively gay in Cameroon;

• A man called [name] sent a text to another saying “I’m very much in love with you”. He was gaoled and later died;

• In 2012 he was beaten by a group of people who said he was homosexual. He [had a particular injury] and sustained other injuries. A good Samaritan helped him escape;

• He did not go to the police because of the way authorities treat gay people;

• He had been living a life of hell in Cameroon since people started suspecting he was gay. He thought of suicide;

• He fears being killed by unjust people or gaoled by the authorities. He said this could happen without evidence;

• He had not explored his sexuality in Australia because he did not know if it was legal and he was studying.

7.    The applicant provided the following documents:

• Letter from the Manager of a [business] stating that the applicant had been working as a [occupation] for [number] months and was conscientious and of excellent character;

• A letter of reference from [a] Teacher at [an education provider] attesting to his character;

• A letter of reference from [a] teacher attesting to his character;

• Copy of a letter from the Director of Human Resources, [from the] Corporation dated [in] October 2010 certifying that the applicant was an intern from 2007 until 2010 and that his conduct and performance were good;

• Copy of an Affidavit from [Mr A], an advocate from [name] Chambers, dated [in] January 2017. [Mr A] states that he resides in [town] and is a member of [an organisation]. He knew the applicant since September 1990 when they were in school. He said that he discovered that he was gay, prior to his move to [Town 2].  He helped him leave and he warned him not to do anything. The Affidavit states that there was a warrant of arrest for the applicant. He also stated that human rights protection in Cameroon falls far below the minimum internationally accepted standards;

• Document headed Cautionary Piece of Advice, from [Mr A] to the applicant dated [in] January 2017. This document states that since the applicant has left Cameroon, his family members have been harassed by police and thus the applicant should stay in Australia;

• Affidavit by [Mr B], the applicant’s [relative] stating that he knew that the applicant was gay, that he had done everything he could to discourage him from that “unlawful act of homosexuality”, to no avail. He also said that he had been arrested and tortured on several occasions because of the applicant’s homosexuality;

• Copy of a Warrant for his Arrest, dated [date]/05/2012, in which he is charged with homosexuality punishable under section 347 of the Penal Code;

• Copy of a summons dated [date]/09/12 requesting that the [Mr B] come before the court, charged with conspiracy. According to the representative, this was related to the fact that [Mr B] helped the applicant leave the country; and

• Copy of an email from the [named] website, undated, indicating that he was a subscriber.

8.    The applicant appeared before the Tribunal on 16 May 2017 to give evidence and present arguments. His representative appeared with him at the hearing.

9.    The applicant provided the following information to the Tribunal:

• [Town 1] is a small farming town, where [crops] is farmed. His parents both came from the region. He belonged to [a certain] ethnic group. He was Christian and he attended church with his mother, who brought him up. His parents were never married. He knew his father, but he did not participate in his life. He heard from his mother that his father was a businessman. His father has now passed away;

• He has [siblings]. [Sibling 1] lives in [Town 2] with his mother, and is not working.  His mother was a [occupation] and is now retired. [Sibling 2] lives in [Town 1] and he is no longer in touch with him. He had one [relative] who visited them in [Town 1], and one [other relative];

• He went to school in [Town 1], finishing high school in [year]. He qualified with [tertiary qualifications] between [years], in [studies],  and [other studies];

• He worked for [a] Corporation in [Town 1] Southwest region from 2008 until 2010/11;

• Management at the [Corporation] realised that he was homosexual in 2011, after receiving complaints from other staff members, even though he was doing well at work. One of the staff members told him that they did not want “his kind” in the business. He was fired, and they told him that he needed to study more, but he already knew that he had higher qualifications than some of the people who worked there;

• After he left there, he looked for work. A local [businessman] called [Mr C] employed him. He worked there for under a year, and then [Mr C] said to him that he did not want him there anymore as clients did not like him. This was because they thought he was homosexual. At the time, he had a homosexual friend, and also did not go out with girls, and this is how they knew;

• He then could not find any other job. He was at home at his mother’s house in [Town 2], which is about [number] hours from [Town 1]. It is a bigger town, but they were in a small part of it. He found no other work after he left [Mr C] in 2010/11, until he came to Australia;

• He applied for a student visa and studied English in Australia. He did not study further. He is working [part-time];

• It was at school that he first felt that he wanted to be with males. He was too scared to tell anyone but just knew he was comfortable with men. People did not talk about homosexuality much. He had friends at high school who were also homosexual and they did have relationships where they would just hang out together;

• His mother called him and asked him if he was homosexual, and she said that she heard he went out with guys, and he told her he did not, because she was very Christian;

• The other boys insulted him, so he stayed away from them. They would call him insults such “demon”, “outcast”, and other words;

• At university he had a relationship with a man called [Mr D], but it was not long-term. People suspected, but did not confront them. [Mr D] was a friend, they played games, and then got to know each other. Sometimes the teachers would comment on them indirectly, saying, for example, that “there are people from hell here”;

• He later had another friend who was gay but did not have any serious relationships;

• He never told his mother [or siblings] about his sexual preference. [Sibling 2] said to him that [he/she] knew what he was doing, and [Sibling 2] had heard stories. He told [Sibling 2] not to listen to the stories;

• Most of his friends knew he was homosexual but they did not talk about it. They were homosexual as well;

• His friend, [Mr D], invited him to join a group. The first and second time he went to the gathering of this group, there were about [number] people meeting in a small park, and they got to know each other. He did not know most of them. One of the members of the group [wanted] them to speak out against mistreatment of gays, but the rest of them were too afraid to do it. He gave them cards, but people were too afraid to do anything;

• In 2012 he was beaten by a group of men. He went to see a friend, and was standing at the entrance to his house. One man said to him “you are gay and want to corrupt our children”. There were four or more men. Somebody else took him to hospital. He [was injured];

• A police officer handed [Sibling 1] a warrant of arrest. The police told him the date he had to attend the station. He went to the station on that date, and they asked him questions about whether he was homosexual. He denied it, and they let him leave. His mother was afraid, as she said everyone was talking about him in the community. So they moved to [Town 2]. Then the police sent another warrant of arrest to [Town 1], where [Sibling 2] was living with [their] father. This was a few months after the first warrant. He went to the police station as required, and was kept there for a few days, and then he was bailed out. [Sibling 2] warned him to stop his homosexual activity. Asked if the police charged him with offences, he said when released he was told that they would investigate and if needed to, they would call him again. They were warning him;

• His lawyer told him to stay away from homosexuality. Then after that he was not contacted again by the police. The barrister said that the police were watching him while he was there to see if he did anything wrong;

• He did not have any relationships with gay people from 2012 to 2014. He was afraid that if he went out it would be used as evidence against him. He was living an isolated life there and even thought of committing suicide;

• He said that his family was harassed by the community because of him. If he walked out of the house, people would say “bring the kids inside”;

• He never really spoke to his mother about his sexual preferences. He knew that it would upset her so did not want to tell her directly. He did speak to his [relative]. His [relative] was very disappointed with him, but promised not to tell anyone;

• His mother has told him that the police still look for him, and have threatened her about where he is;

• His [relative Mr B] helped him to leave, as he needed to get out of Cameroon. He was told the best way was to apply for a student visa online. It is easy obtaining a passport in Cameroon, and he applied in a different city;

• [Mr B] was summonsed to appear before court, because he helped the applicant leave the country. He had been arrested because of his involvement with the applicant;

• After he had been arrested, the police would come to his house and ask if he was around. He was always indoors, and they did not speak to him

• His [sibling] had told him that his family members had been harassed and molested from the forces of law and order, and his mother personally confronted;

• [Name] Chambers are a well-known firm in [Town 1];

• He has some close straight and gay friends in Australia, but has not had any relationships with men. He has attended some gay events. For example he went to [an] event, where people talked about difficulties they have experienced because they are gay. He has also attended [another] event. He has been to some gay [bars], however he usually works on weekends. If he found the right person he would be in a relationship and get married. He has been on gay sites. He is a member of a website Called [name], where they get sent magazines and are informed of events. He has friends that know he is gay in Australia. He lives freely as a gay person, and talks to people about it openly. He is not really friends with people in the Cameroon community in Australia;

• He did not know that he was meant to tell the Department everything. He was scared and also he thought the case officer was his lawyer.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In coming to a decision, the Tribunal has taken into account evidence on the Department file, evidence before this Tribunal and independent country information about Cameroon.

2. A summary of the relevant law is set out in Attachment A.

Nationality

1. The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in Cameroon. It was clear that he was familiar with the culture, history and geography of Cameroon, and the Tribunal accepts on the evidence before it that he is a citizen of Cameroon, and that Cameroon is the receiving country for the purposes of the complementary protection provisions.

Findings of Fact

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, 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. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’.  All this is taken into account in these findings.

2. Given that it is often difficult for lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people to talk about private matters concerning their sexuality, the Tribunal has also utilised the Department’s guidelines for assessing claims related to sexual orientation and gender identity.[1]

   [1] Department of Immigration and Border Protection, “Annexure 5: Assessing Claims related to sexual orientation and gender identity”

3. The Tribunal is satisfied that the applicant is a homosexual man. He has provided consistent evidence to the Department and Tribunal about his recognition of being gay, and how he had to hide it in Cameroon. He has talked about how, right from school days, just “knowing that he was comfortable with men”, but being too scared to tell anyone. Initially his relationships were more akin to friendships. He said that people in Cameroon just did not talk much about homosexuality. The Tribunal accepts that a young gay man in Cameroon would be afraid, and tentative about relationships, in the way described by the applicant. When discussing his homosexuality, he had been somewhat reserved, and has not had many relationships. However this is understandable given that he grew up in an environment where homosexuality was criminalised and a taboo subject. The Tribunal is satisfied that it is difficult for him to talk openly about his sexuality. The Tribunal notes that he has had some involvement in the gay community in Australia, being a subscriber to [named website], and has attended some gay events and bars. Importantly he said that all his friends know he is gay, and he lives openly as a gay man in Australia. He was also able to discuss convincingly about how he could not speak to his family about his sexual preferences. In particular he did not want his mother to be upset as she was religious.

4. The Tribunal is also satisfied that the applicant has been subject to harassment, discrimination and violence in Cameroon because of his homosexuality. His description of these incidents was straightforward, open and told with the kind of detail commensurate with telling the truth. For example, he was able to recall words used by teachers at university who suspected him of homosexuality, and feelings of concern he had for his mother and other family members who suspected he was homosexual. His evidence has been supported by documentary evidence in the form of an affidavit from his lawyer in [Town 1], copies of the warrants, and a letter from his [relative, Mr B], who had tried to dissuade him from his homosexual tendencies.  The Tribunal is satisfied therefore, that he was fired from a job at the [Corporation] after staff members realised that he gay, even though he was doing well at work. When he discussed this at the Tribunal hearing, it was evident that he still felt the injustice of being told that he needed more qualifications, when he was more highly qualified than other employees. The Tribunal is satisfied that after a year working at [Mr C], he was told to leave because clients did not like him as he was homosexual. The Tribunal is satisfied that he had difficulty finding other jobs. The Tribunal is satisfied also that he was insulted and called names regularly throughout his life in Cameroon. He expressed real concern that people told their children to go inside when he was nearby. The Tribunal is satisfied that he attended a gathering of homosexual men and that one of the men wanted the group to become activist, but the others were too afraid. The Tribunal is also satisfied that he was beaten by a group of men for being gay in 2012, and that a warrant for arrest was issued on two occasions, and that he was harassed and threatened by authorities, although no charges were laid.

5. The applicant’s descriptions of the incidents of harassment, discrimination and violence he experienced are consistent with the experiences of other gay men, as reported in country sources[2] and discussed further later on in this decision.

   [2] United States Department of State, Country Report on Human Rights Practices Cameroon, 2015, Amnesty International, Amnesty International Report 2015/2016 Cameroon, 13 April 2016

Convention reason

1. Having established that the applicant is a homosexual man who has suffered harm in Cameroon, the next question to consider is whether the persecution the applicant fears is for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion.

2. Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:

   First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[3]

   [3] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ.

1. It is well-established that gays or lesbians can constitute a particular social group, Applicant A v MIEA (1997) 190 CLR 225[4] Clearly, homosexuals in Cameroon are identifiable by a characteristic or attribute common to all members, their sexual preference, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.

   [4] Applicant A v MIEA (1997) 190 CLR 225, Appellant S396/2002 v MIMA (2003) 216 CLR 473

2. The Tribunal is satisfied that the applicant is a member of the particular social group of “homosexuals in Cameroon”, and fears harm for this reason.

Well-founded fear of persecution

1. 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.

2. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

3. The Tribunal has considered carefully country sources relating to treatment of homosexuals in Cameroon, to ascertain whether the applicant has a real chance of persecution were he to return in the reasonably foreseeable future. The Tribunal is satisfied that the applicant has a real chance of persecution, which would be more than remote or insubstantial. The reasons for this are set out below.

4. The United States Department of State Report on Human Rights Practices 2015 reports as follows on the treatment of LGBT people in Cameroon:

   Consensual same-sex sexual activity is illegal and punishable by a prison sentence of six months to five years and a fine ranging from CFA francs 20,000 to 200,000 ($35 to $347). Most human rights organizations that advocate for decriminalization of sexual relations between consenting adults of the same sex consider the penal code invalid for procedural reasons and because it violates the principal of equality. Government officials defended the law by claiming the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights state that countries may limit freedoms in the interest of preserving public order and that individuals have the duty to preserve African values and morals.

   Although reports of arrests dropped dramatically, homophobia remained a major concern. LGBTI individuals continued to face social stigmatization, harassment, and discrimination. There were increasing reports that both police and civilians extorted money from presumed LGBTI individuals by threatening to expose them. [5]

   [5] United States Department of State, Country Report on Human Rights Practices Cameroon, 2015

5. Amnesty International in its 2016 Annual Report found that discrimination, intimidation, harassment and violence against LGBTI people remained a concern. Amnesty noted that when the Criminal Code was revised in June 2016, the provisions relating to criminalisation of same sex relations were retained. Amnesty reported on an incident in 2016 when three young men were arrested in Yaounde and taken to a gendarmerie station where they were beaten, shaven and insulted. The Report states that gay men are often held beyond the 48 hours allowed by law and there are reports of detainees being beaten, subjected to anal examinations without consent, and held in solitary confinement. Some individuals accused of same-sex sexual conduct have been held for up to three years in prison without charge or trial. Amnesty notes that in most cases, arrests are made on the basis of appearance, or because neighbours or family members denounce a person as a homosexual. Prosecutions are rarely based on actual evidence. [6]

   [6] Amnesty International, Amnesty International Report 2015/2016 Cameroon, 13 April 2016

6. A Human Dignity Trust report in 2015, although noting that prosecutions had dropped from 2012 to 2014, documented numerous cases of violence, arrest and prosecutions.[7]

   [7] Human Dignity and Trust, “Criminalisation of Homosexuality, 25 October 2015,

7. Human Rights Watch reports indicate that homosexual men face significant abuses in Cameroon, and describes the homophobic climate as “pervasive””[8] These reports state that the Cameroon Penal Code criminalises same sex relations and imposes a term of imprisonment of six months to five years, and a fine. The information indicates that the law is enforced. According to “Guilty by Association”:

   Cameroon prosecutes people for consensual same-sex conduct more aggressively than almost any country in the world. Unlike many of the 76 countries that currently have such laws on the books, but which rarely enforce them, Cameroonian prosecutors have brought charges against at least 28 people for homosexual conduct over the last three years. In most cases, the accused are convicted, often on the basis of little or no evidence. Investigators frequently rely on torture or ill-treatment to extract confessions. Although Cameroon’s Criminal Procedure Code contains provisions to the effect that confessions must be accompanied by other forms of evidence, these provisions are not respected.[9]

   [8] Human Rights Watch, “Guilty by Association”, 20 March 2013 [8] Human Rights Watch, “Criminalising Identities”, 4 November 2010 

   [9] Human Rights Watch, “Guilty by Association”, 20 March 2013

8. According to another source:

   …most convictions are not actually supported by evidence of sexual activity. Charges are triggered by the slightest suspicion that someone belongs to the homosexual minority, and evidence is subsequently obtained through torture and ill-treatment. Cases of flagrant délit are in reality set-ups: the police forces require complainants to “date” suspects, who are then arrested for “attempted homosexuality”.[10]

   [10] Volpe, V, Oxford Human Rights Hub, “The Crime of “Homosexuality” under Cameroon Criminal Law, 16 December 2013,

9. The reports document serious human rights abuses, including torture, occurring during the legal process. According to Human Rights Watch:

   Homosexuality cases are marked by a staggering number of due process violations and other rights abuses, comprising torture and illtreatment (including anal examinations), violations of privacy, and blatant homophobia on the part of judges and law enforcement officials. [11]

   [11] Human Rights Watch, “Guilty by Association”, 20 March 2013

10. This occurs:

    “In a climate marked by pervasive homophobia, where media publish sensational stories “outing” public figures as alleged homosexuals and where workshops and other events aimed at advancing LGBT rights have been shut down by both government officials and vigilante mobs, few lawyers are willing to take up such cases”[12].

    [12] Human Rights Watch, “Guilty by Association”, 20 March 2013

11. After considering these country sources cumulatively, the Tribunal is satisfied that homosexual men in Cameroon are targeted by the authorities and risk prosecution, physical mistreatment and torture. The reports also indicate that the community at large is hostile to homosexual men, and “hate crimes” are prevalent.  Both the applicant’s evidence about his experiences, and the country information indicate that public manifestation of homosexuality is dangerous.

12. The Tribunal is satisfied, based on these country sources, that there is a real chance (more than a remote or unforeseeable chance) of serious harm if the applicant were to return to Cameroon in the reasonably foreseeable future, because of his homosexuality. His homosexuality has already been recognised on numerous occasions in Cameroon, and he has suffered severe discrimination in the workplace, insults, humiliation, harassment, violence from members of the public, and harassment by the authorities. If he returned to Cameroon, there is a real chance that he will be harmed by the authorities (arrested and ill-treated) and by members of the community (violence and serious discrimination). The sources indicate that homosexuals are often denounced by family or community members and that they can be charged and held in detention notwithstanding there is no actual evidence. The applicant has already been accused of being a homosexual which indicates that there is a very real chance that he will be arrested or ill-treated by the community upon return.  The Tribunal is also satisfied that he could not seek protection from the state authorities as the information indicates that they condone and tolerate anti-gay behaviour.[13] The Tribunal is also satisfied that the persecution he would face would involve systematic and discriminatory conduct, in that it would be non-random and selective harm, motivated by a desire to harm the applicant because of his sexual preference.

    [13] Amnesty International, Amnesty International Report 2015/2016 Cameroon, 13 April 2016

13. The Tribunal is satisfied that the applicant would not be able to safely relocate within the country. The harm he fears is from the authorities, as well as the community, and it is apparent that anti-gay attitudes are prevalent throughout Cameroon.

14. There is no evidence that the applicant could safely enter and reside in a safe third country.

15. The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group, homosexuals in Cameroon, were he to return to Cameroon in the reasonably foreseeable future.

CONCLUDING PARAGRAPH

1. 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

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jane Marquard
Member

Attachment A

RELEVANT LAW

1. 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

1. 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).

2. 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.

3. 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.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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.

3. 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

1. 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.