1514908 (Refugee) - [2017] AATA 2962

1514908 (Refugee) [2017] AATA 2962 (22 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514908
COUNTRY OF REFERENCE:                  Botswana
MEMBER:Jane Marquard
DATE:22 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 November 2017 at 8:08am
CATCHWORDS
Refugee – Protection Visa – Botswana – Particular social group – Lesbians in Botswana – Fear of persecution – Fear of ostracism – Fear of violence – Discrimination – Claims not supported by country information – Repeated returns to home country – Level of harm not significant
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 91R, 91S, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Applicant S v MIMA (2004) 217 CLR 387
Applicant A v MIEA (1997) 190 CLR 225
Appellant S396/2002 v MIMA (2003) 216 CLR 473
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMIA v Kord (2002) 125 FCR 68
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FMCA 78
SZRSN v MIAC [2013] FCA 751
SZRUT v MIAC [2013] FCCA 368
SZRUT v MIBP [2013] FCA 1276
SZSFX v MIBP [2013] FCCA 1309
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

The applicant was born in [year], and is a citizen of Botswana.
She first arrived in Australia [in] July 2002 on a student TU 573 visa. She remained on student visas until [March] 2008.
[In] July 2008 the applicant was granted an Interdependency (same sex) Partner Temporary UK -826 Visa. [In] August 2010 her application for a Partner (Residence) (Class BS) visa was refused.
She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) [in] September 2013.
A delegate of the Minister for Immigration, the Department of Immigration (the Department) refused to grant the visa [in] October 2015.
The applicant attended a hearing before the Tribunal to give evidence and provide arguments, on 17 August 2017.
CLAIMS AND EVIDENCE
The applicant provided the following information about her background and claims to the Department and Tribunal:
·She was born in Gaberone, and is a Motswana. Her mother worked in [a company], and her father ran [a] business. They are now retired, and still living in Gaberone. She has a brother and sister in Gaberone. She is not sure if her brother is working as she has not spoken to him for seven years, as she felt betrayed by him. She grew up being best friends with him. She tried to talk to him about her break-up with her partner, as she thought that he was the closest person to her. She thought that he would have explained her choice of sexual preference to their parents, but he did not. His reaction was a shock to her, as he opposed her sexual choices. He said that she should be prayed for, and was possessed by demons. He said that he knew somewhere where she could go and get cleansed. Her sister is supportive, but could not be vocal about it as her parents do not support her being a lesbian;
·Her family are Catholic and she is “a little partial to it”. She does go to church in Australia. When she grew up her family went to church every week;
·She attended a private high school in Gaberone, and then [a college] in [a town]. She [studied] at a college in Gaberone, from [year] to [year]. After finishing her course, she studied in Australia, doing [further studies], then [a subsequent course], but she did not finish this course. She did complete a course in [another field], and now is studying [another course];
·She has two children who are living with her parents in Botswana. Her son was born in [year], and her daughter was born in [year];
·She identifies as a lesbian and fears harm from authorities and private individuals because she is a lesbian;
·She knows a handful of lesbians in Botswana but has no close friends who are lesbians;
·She first started identifying herself as a lesbian when she was at school, but she had no real definition for the feelings she had. She did not act on her sexual preference for girls, but she felt herself getting attracted to girls. Lesbianism was not a subject of conversation. There were some girls at school who she suspected might have been lesbians, but she never asked. She knew that her feelings towards girls were different to friendship, because of the emotional side of her feelings. There were girls who made her heart beat fast. She did not go out with boys at school;
·It was only in 1998 or 1999 that she first admitted to herself that she had sexual preferences for women. She was approached by a [woman] at that time, and felt nervous as she did not know what her feelings were. She was in [Country 1] when she started having a relationship with this woman, and she did not think about Catholicism or her family. Around that time she visited [Country 1] often, and it was easier for LGBTI people to socialise, and meet each other there. This was her first serious relationship. The relationship was on and off for a year, as she was living in Botswana. She would visit her in [a city in Country 1]. Her girlfriend was not open about her sexual preferences. Some of their friends knew, but her girlfriend would not tell other people outside their circle of friends. They would meet up at her apartment. At that time she did not think about the law. She can’t remember what she felt about attitudes in Botswana, and did not think about what her family felt. She had heard people in Botswana talk about gay and lesbians, but most people she knew who were gay or lesbian lived in [Country 1]. The relationship ended because her parents questioned why she was always going to [Country 1]. It put a strain on the relationship, which fizzled out in time. Her parents gave her an option to move out or go to school, so she decided to go to school. She then went to Gaberone. She was at college, and around 1998 she had a boyfriend, but it “felt weird”. She was with him for three months. The interaction was very different and it did not feel as “smooth” as with a girl;
·She became pregnant to this boyfriend and her son was born in [year]. She had been with him for [duration], when he was conceived. After that, when her son was [age], she saw the boyfriend again, as in between he had moved to [Country 1], and they were not an official couple. Although they conceived her daughter he was not her boyfriend. He did ask her to marry but she did not like him “in that way”. She was [age] years old, and he was [age] and it was not the life that she wanted. She is not in touch with him. When her children came to visit her in Australia, her daughter wanted to understand why her friends live with their parents, whereas her parents are separated, and she had to disclose to her that she preferred women. Her children had not seen their father when they came to Australia in 2005/6, but they did see him later and did not get along well;
·She has not had other relationships with men since the relationship with the father of her children;
·While she was looking after her young children she did not have other relationships with women either. She then left her children with her parents and came to Australia;
·She did tell her friends in Botswana about her relationship with the women in [Country 1], and they thought it was funny. She did not tell her parents or siblings. It was not kept as a secret, but there was not much to tell. Her sister was only in primary school;
·She told her parents that she was lesbian when she applied for the partner visa. At the time she did not think her mother thought about it properly and took it that she and her partner were just friends. She did not talk to her father much about it;
·After her children returned to Botswana following their visit to Australia, they told her parents about the applicant and her partner living together, sleeping in the same room and calling each other “babe”. She thinks that this was when the reality dawned on her mother. But she only had a proper conversation with her mother, after her partner broke up with her, and the applicant was distraught. They had many conversations and her mother thought that now she could get a boyfriend. She thought it was a phase the applicant had passed through. The applicant did not talk to her father, but she knows that her mother brought her father and brother to the table to discuss it. They are active and committed Catholics so they did not approve or understand, and consider lesbianism to be sinful. They thought it was a phase and she would stop when she matured;
·Three weeks after she arrived in Australia, she had a relationship with a woman she met at a gay and lesbian nightclub in [a suburb]. She did not know people in [the city where she was staying] so just went to this club. It was near the [school] she was attending. She had a relationship with this woman for six months;
·She had two other relationships with women before meeting her long-term partner, [Ms A]. In 2004 she met [Ms A] through a gay friend who lived [near] her house. They fell in love and began a long-term relationship. They were together for six and a half years. She met [Ms A]’s family. After three years she was granted the first stage temporary Subclass 826 visa;
·She told her children about her relationship with [Ms A] when they came to Australia to visit. Her son said that he was happy if she was, and her daughter asked questions, and she does not really know how she feels;
·She returned to Botswana in order to obtain a police clearance for her visa application. Before she did so, she spoke to a [a lawyer]. He told her not to tell the authorities that she was applying for a same-sex visa or they would not give her police clearance, so she said she was applying for a work-related visa;
·Towards the end of 2009 she met a woman called XX while working at [a business]. They became friends and XX met [Ms A]. She later found out that [Ms A] was unfaithful to her with XX. As a result she and [Ms A] separated and ended the relationship;
·Her parents were pleased that they had broken up. She argued with them and told them she would not “become straight”. They were angry and did not talk to her for seven or eight months. Eventually they regained contact as the lack of communication was difficult for her son to deal with and he encouraged them to talk to her. However, their relationship is still strained. She knows that her mother reads the Bible to her children all the time, and she fears that this is because of her sexuality. She speaks to her parents a few times a month about the children and she pays for their school fees;
·Her permanent partner visa was refused as she and [Ms A] had broken up. She still applied to the Migration Review Tribunal as she was misinformed, thinking that because they had had a long relationship, she could still apply. The Migration Review Tribunal affirmed the decision in December 2012. The decision of the Migration Review Tribunal indicates that she believed that the Department had told her that she could still be eligible for a visa;
·She has had other relationships with women since her break-up with [Ms A]. She met a girl at a mutual friend’s [party]. She attends lesbian clubs [where] they hold events;
·She did not think of applying for protection earlier as she did not consider that she was at great risk, prior to her relationship with [Ms A]. She intended to finish her studies, and return home to a double life, visiting [Country 1] in order to socialise with other lesbians. However now her status is known by her family and children, and she could not slip under the radar. She has lived her life in Australia in a way that is tolerant and free. She does not have to try and be someone else, and will have no freedom. If she goes back, she does not think she can be in the closet and it will put the spotlight on her. She fears discrimination and judgment. She fears for her children’s safety. She would want to explain her sexual orientation more fully to them. She fears that they will tell their friends, and just generally stories will get around to their friend’s parents as well. Children can be mean, and she does not want them to be beaten up for having a lesbian mother, or being teased;
·It is illegal to have same sex relationships in Botswana. The authorities would arrest and imprison her if they knew about her orientation. She also fears social ostracism; and
·The applicant provided a copy of a letter from her [father], dated [in] December 2012. He stated that the relationship between father and daughter had been severed. He said that he is [religious] and preached that the life she leads is not what he likes, as men should marry women.
When asked at the Tribunal hearing if there was anything further she wished to submit or add, she said that she hopes the decision goes well. She said that she has taken a very long time to get to this place, and hoped the Tribunal would consider everything carefully.
Department’s decision
The Department found the applicant to be a credible witness. However the Department was not satisfied that the country sources indicated that she would be persecuted or that she met the complementary protection criteria.
Furthermore, the Department noted that the applicant visited Botswana on six occasions between 2002 to 2009, to visit her children, and there were no problems during these visits.
CONSIDERATION OF CLAIMS AND EVIDENCE
In coming to a decision, the Tribunal has taken into account information on the Department file, evidence before this Tribunal and independent country information about Botswana.
A summary of the relevant law is set out at Attachment A.
Nationality
The applicant provided a copy of her passport and gave evidence that she was a citizen of, and born in, Botswana. It was clear that she was familiar with the culture and geography of Botswana, and the Tribunal accepts on the evidence before it that she is a citizen of Botswana, and that Botswana is the receiving country for the purposes of the complementary protection provisions.
Findings of fact
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. 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 sensitive to the various cultural differences which 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.
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”
In submissions to the Tribunal, the applicant said that she had missed out on many years of seeing her children and had foregone seeing them grow. She said that she had suffered from depression and been on anti-depressants since 2012 as a result of the stress and anxiety of the process. At the Tribunal hearing she confirmed that she was not feeling depressed on that day, and was not on any medication which would impact on her giving evidence. However she stated that she had been depressed and on anti-depressant medication since 2012. The Tribunal has taken this into consideration in assessing the claims.
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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).
The Tribunal is satisfied based on the applicant’s evidence that she is a lesbian, and has had a number of relationships with women. She was a credible witness who was able to talk about the evolution of her realisation that she was interested in girls at school, knowing that her attraction was more than friendship, because of the emotional side of her feelings. She explained convincingly in the context of her realisation, that she had no real definition for her feelings. Her evidence about the way she came to terms with her feelings, in an environment where “lesbianism was not part of the conversation”, was persuasive. Clearly the experience she had with her brother, who she had thought would support her choices, but in fact rejected her, had significant emotional impact on her. She has given detailed evidence about various relationships in [Country 1] (where lesbians could freely have relationships) and in Australia. The Tribunal is satisfied on her evidence that she had a relationship with a man in Botswana, who fathered two children, but that the relationship was not “smooth” as her relationships have been with women. The Tribunal is satisfied that since then, she has been in relationships with women, including a 6 year relationship with a woman in Australia, and has attended gay clubs and events in Australia.
The Tribunal is satisfied that her parents and brother have not approved of her sexual orientation, and are Christian and traditional, although her sister has supported her.
Convention reason
The persecution an 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.
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.[2]
[2] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ.

It is well-established that gays or lesbians can constitute a particular social group, Applicant A v MIEA (1997) 190 CLR 225[3] Clearly, lesbians in Botswana 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.
[3] Applicant A v MIEA (1997) 190 CLR 225, Appellant S396/2002 v MIMA (2003) 216 CLR 473
The Tribunal is satisfied that the applicant is a member of the particular social group of “lesbians in Botswana”.
Well-founded fear of persecution
The applicant claims to fear serious harm from the authorities and private individuals in Botswana. She claims that same-sex relationships are illegal in Botswana, and she also fears social ostracism and discrimination from the community.
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.
The Tribunal has considered carefully a range of country sources relating to the treatment of lesbians in Botswana, to ascertain whether the applicant has a real chance of persecution were she to return in the reasonably foreseeable future. After considering these sources, the Tribunal is not satisfied that the applicant has a real chance of persecution in the reasonably foreseeable future. The Tribunal is not satisfied that the chance of harm would be more than remote or insubstantial. The reasons for this are set out below.
According to the most recent United States Department of State Report on Human Rights Practices:
Botswana has been a constitutional, multiparty republican democracy since independence in 1966. Its constitution provides for the indirect election of a president and the popular election of a National Assembly. In October 2014 the ruling Botswana Democratic Party (BDP) won the majority of parliamentary seats in an election deemed generally free and fair. President Ian Khama, who has held the presidency since the resignation of former president Festus Mogae in 2008, retained his position. The BDP has held the presidency and a majority of National Assembly seats since independence.[4]
[4] United States Department of State, Country Report on Human Rights Practices for 2016, 2017, – accessed 16 August 2017
The Lesbian, Gays and Bisexuals of Botswana association, LeGaBiBo, has a website which states:
The Botswana Penal Code lists homosexual sexual acts as Offences in Division III: Offences against Morality:
Section 164: “Any person who… has carnal knowledge of any person against the order of nature” or “permits any other person to have carnal knowledge of him or her against the order of nature is guilty of an offence and is liable to imprisonment for a term not exceeding seven years”
Section 165: “Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years”
Section 167: “Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence”[5]
[5] LeGaBiBo website, - accessed 16 August 2017
These provisions are discussed in the most recent United States Department of State Report on Human Rights Practices:
The law does not explicitly criminalize consensual same-sex sexual activity, but it includes language criminalizing some aspects of same-sex sexual activity. What the law describes as “unnatural acts” are criminalized with a penalty of up to seven years’ imprisonment, and there was widespread belief this was directed toward LGBTI persons. On August 31, the Gaborone Magistrate Court sentenced a man to three and one-half years’ imprisonment, two of them suspended, for committing “unnatural acts.” The man was among 580 prisoners pardoned by President Khama as part of the 50th Independence Day celebrations in September. There were no reports police targeted persons suspected of same-sex sexual activity. LGBTI-rights organizations claimed there were incidents of violence, societal harassment, and discrimination based on sexual orientation or gender identity. The victims of such incidents seldom filed police reports, primarily due to stigma but occasionally as a result of overt intimidation.
Public meetings of LGBTI advocacy groups and debates on LGBTI issues occurred without disruption or interference. In March the Court of Appeals upheld a 2014 High Court ruling ordering the government to formally register LeGaBiBo (Lesbian, Gays, and Bisexuals of Botswana), a group that advocates for LGBTI rights. LeGaBiBo has since participated in government-sponsored events.[6]
[6] United States Department of State, Country Report on Human Rights Practices for 2016, 2017, – accessed 16 August 2017
An earlier report from 2011 also suggests that prosecution of LGBTI people had been minimal. A news article which refers to quotes from the former US envoy states:
"Current and former members of the Botswana Police Service say that they do not actively seek homosexuals to arrest, and that this would only be pursued if they received specific complaints.
"In fact, there are only isolated reports of any one being arrested or brought to trial under this statute in years past", Nolan stated.[7]
[7] Mmegionline, 2011 accessed 16 August 2017
These reports were put to the applicant for comment, in particular, that the reports did not suggest that there was use of the Botswana Penal Code provisions to prosecute lesbians. Further, the reports state that police did not target people suspected of same-sex activity, and the LGBTI advocacy group has been able to register and participate in government sponsored events. The Tribunal put to the applicant that these factors may indicate that although there is some violence and societal harassment of lesbians in Botswana, there is not a real chance of serious harm from the authorities. She said that regardless of the fact that LeGaBiBo has been able to register, this is at the end of a long journey, and LGBTI people still face challenges. She said religion and culture have a big impact on the law. She said that there is a lot that happens where there are no reports to police, at the risk of being ridiculed. People in Botswana fear shame. For example rape does not get reported often, as women fear police questioning their character. She claimed that while there is not information readily at hand to show that anyone had been imprisoned for simply identifying as LGBTI, it is “inaccurate to assume that it has not happened and it will not happen. Bearing in mind that Botswana is a third world country and such information would not be readily available.” She referred to the case of Utijwa Kanane, who was caught in bed with a man and accused of engaging in unnatural acts.
The Tribunal accepts that there may be incidents where reports are not made to the police, and that religion and culture have an impact on people’s views towards LGBTI people. However, notwithstanding this, there do appear to be major developments in societal attitudes towards LGBTI issues, as recognised by the LGBTI organisation, LeGaBiBo, itself. LeGaBiBo is hosting a conference of LGBTI organisations from Africa in 2018 and states on its website:
The PAI conference will host over 200 delegates from across Africa and the world. It will be an opportunity for the world to see how Botswana is quickly becoming a progressive nation and an example in Africa and the world where LGBTI human rights are concerned. It is also a chance for the LGBTI community, the key population coalition and partner organisations to be in the forefront, leading and showcasing best practices in the protection and promotion of LGBTI human rights. Additionally, the conference will be a major boost for Botswana’s tourism industry and contribute to the blossoming economy as well as show-case the best of our diverse culture.[8]
[8] LEGABIBO website, - accessed 16 August 2017
It was put to the applicant that the LeGaBiBo site suggests that Botswana is quickly becoming a progressive nation, and a model for the furtherance of LGBTI rights in Africa, reflected in the fact that the African LGBTI conference is being held in Botswana in 2018. The LeGaBiBo website also refers to various LGBTI events held in Botswana including a film night, a bar/club night and a Pride night. Further the “Frequently Asked Questions” section of the website, refers to lack of constitutional protection for LGBTI people, but questions whether there have been any convictions under the “unnatural act” provisions. It also refers to protections for LGBTI people from discrimination in employment.
The applicant responded to this information by suggesting that while there has been progress, it has taken some time to get there. The fact that there is a conference is good, but there are other issues which could arise between now and then. She referred to a boy who has had a sex change, and is seeking the High Court to recognise him as a woman. She said that one commentator put information about this on his Facebook page, and there were many negative comments. She still fears that harm would take place if she returned. The Tribunal accepts that there may be some negative attitudes to LGBTI people. In regard to the case referred to by her, a recent article discusses how a transgender man in Botswana has won the right to have his status reflected on official papers. According to Human Rights Watch, the applicant was born female but self-identified as a man, and was “overjoyed” at the result. [9]
[9] Human Rights Watch, “Victory for gender identity in Botswana” October 2017, - accessed 20 October 2017
It was also put to the applicant at the Tribunal hearing that recently an anti-gay pastor was deported from Botswana after saying that gay and lesbians should be killed. President Khama said, in relation to this pastor, that “we don’t want hate speech in this country” [10] The applicant responded that this is not a sign of progress. She does not feel as if this was done in protection of LGBTI people, but more as a sign of power.
[10] Huffingtonpost, “Anti-gay pastor arrested and deported from Botswana”, - accessed 16 August 2017
The Tribunal has considered carefully the important question of whether there is a real chance of serious harm simply because the legislation still contains provisions which could be used to prosecute lesbians. The Tribunal is not satisfied based on the country sources set out above that the applicant would face serious harm from the authorities in Botswana because of these provisions. Clearly while provisions do exist in the Botswana Penal Code outlawing “carnal knowledge against the order of nature” these provisions have only been used very rarely against homosexuals and not recently. Further, the provisions have not been utilised to prosecute lesbians and there are no reports of police targeting lesbians. The Tribunal accepts that there may be some incidents which are not reported, however the Tribunal does not accept that if there was significant use of the provisions by the authorities that there would not be some reporting of this. Furthermore the Tribunal is not satisfied that there is a real chance of the provisions being utilised in the future to prosecute lesbians, given that there have been no (or few) prosecutions in the past, and there have been significant developments in societal and government attitudes. This is demonstrated by the fact that gay and lesbian events are held publicly, the LGBTI Africa Conference is to be held in the country in 2018, and President Khama deported an anti-gay pastor (even if part of the motivation for this is power, as suggested by the applicant).
The Tribunal is satisfied that there is general social conservatism within the country in relation to lesbians, and that this may be reflected in incidents of violence, social ostracism and discrimination by community membes, as suggested by LGBTI groups[11].
[11] United States Department of State, Country Report on Human Rights Practices for 2016, 2017, – accessed 16 August 2017
In regards to the violence by members of the community against lesbians, the country reports do not suggest that this is widespread. Numerous website searches were conducted but the Tribunal was unable to locate specific reports of violence against lesbians.[12] The applicant has said that she is physically recognised as a lesbian. However she did not suffer any physical violence in the past for this reason, including on her visits back to Botswana. As set out above, recently Botswana has become more progressive in relation to LGBTI rights, with the President expelling an anti-gay pastor, the High Court determining that an LGBTI organisation must be registered, the holding of LGBTI public events and the planning of an LGBTI conference in 2018. While there may be some cases of violence from members of the community which remain undetected and unreported, the reports do not suggest this is a serious problem. Considering all of this information, the Tribunal is not satisfied there is a real chance of violence (more than a remote or insubstantial chance) from community members against the applicant were she to return to Botswana in the reasonably foreseeable future. Asked about a statement made in her papers that “LBGTI individuals are targeted in crimes such as corrective rape”, the applicant that she had heard about this in [Country 1], which is closely related to Botswana and people think similarly. While there may be instances of corrective rape taking place, the Tribunal is not satisfied there is a real chance of corrective rape, as country sources consulted do not indicate that this is a problem.[13]
[12] Searches included google searches for news reports, United States Department of State, Country Report on Human Rights Practices for 2016, rl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265226 – accessed 16 August 2017; Amnesty International, Freedom House See for example United States Department of State, Country Report on Human Rights Practices for 2016, rl/rls/hrrpt/humanrightsreport/index.htm?year=2016&dlid=265226 – accessed 16 August 2017, Freedom Househttps://freedomhouse.org/report/freedom-world/2017/botswana
In regards to social ostracism and discrimination, persecution must involve ‘serious harm’ to a person. s.91R(2) of the Act sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred by way of an aid to their application.[14] The following are listed as instances of ‘serious harm’:
(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.
[14] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ at [48], Gageler J agreeing. Although the Court was considering ss.91R(1)(b) and (2), its reasoning appears equally applicable to ss.5J(4)(b) and (5), given their similar wording.
The applicant told the Tribunal that one Member of Parliament has categorised same-sex people as prostitutes, who were HIV positive, and therefore the government should not pay money for treatment of same sex people. She feels that there could be denial of access to health services which would affect her ability to get a job. She also referred to an incident in which the Botswana government refused to issue an exemption certificate for the adopted child of a gay American diplomat. A government official had stated that they did not wish to be seen condoning homosexual activity. She quoted articles which suggested homosexuality was anti-Christian and contrary to Botswana culture. The Tribunal is satisfied that there may be instances in which community members, including public officials, may make negative comments about LGBTI people. There may also be instances of discrimination, although the country reports do not suggest that this is widespread.[15] However, the Tribunal is not satisfied that the applicant would be denied health services or that social ostracism or discrimination which the applicant may experience in Botswana would reach the level of serious harm envisaged by the legislation, involving, for example, serious psychological harm or denial of access to services, or any other level of serious harm not referred to in the legislative indicative examples.
[15] United States Department of State, Country Report on Human Rights Practices for 2016, 2017, – accessed 16 August 2017
Some reports suggest that Botswana is a socially conservative society generally, and that it is for this reason that homosexuality is not overt. The former US envoy is quoted in one article stating:
In general, although gays in Botswana do not disclose their sexual orientation publicly, Nolan writes that it is not out of fear of the public or the law but simply because Botswana is a conservative society where it is very rare to see public displays of affection, even between heterosexual couples.
"Therefore, it is hard to say if gays are suppressed from expressing their feelings or if lack of homosexual expression fits within the cultural context of keeping displays of affection and sexuality a private matter".
In general, Nolan stated that it seems as though one could classify Botswana as a "don't ask, don't tell" society when it comes to homosexuality.
"The citizens of Botswana know it exists and seem to turn a blind eye as long as the issue is not forced upon them", he stated in his cable.[16]
[16]Mmegionline, 2011 accessed 16 August 2017
When this information was put to the applicant, she agreed that Botswana is a conservative society, and the majority of people have never left the country. She said that she has seen the other side and does not feel that she could live under the radar.
The Tribunal is not satisfied, considering the information set out above, that if she lived openly as a lesbian person, that she would suffer harm amounting to serious harm. She told the Tribunal that she did not want her children to forget who she was, and she wanted to try and maintain the relationship between them, and for this reason she has visited Botswana on a number of occasions. She has been able to return to Botswana on these occasions without suffering harm. She said visiting for two weeks was not the same as living there. She did not go out clubbing or act publicly as a lesbian. While she told the Tribunal that she hid her lesbianism on these visits, she also told the Tribunal that she is identified visibly as a lesbian. Although she may live more publicly as a lesbian when she returns than when she has visited in the past, the fact that she has been able to visit without harm does provide some indication that there would not be a real chance of serious harm if she returned in the reasonably foreseeable future.

In MIMA v Haji Ibrahim McHugh J emphasised the degree of harm that would be required to constitute persecution. His Honour explained:
The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[17]
[17] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
The Explanatory Memorandum explains that the definition of ‘persecution’:
… reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[18]
[18] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No.6) 2001, at [25].
This description of the statutory ‘serious harm’ test is reflective of the concept of persecution under international law as interpreted by the High Court of Australia.[19]
[19] MIMIA v Kord (2002) 125 FCR 68 at [34].
As discussed, while there may be some instances of social ostracism or social discrimination, the Tribunal is not satisfied that this would reach the level of harm envisaged by the legislation given the indicative examples in the legislation, and the High Court decisions referred to above, as well as the comments in the Explanatory Memorandum. The Tribunal is sympathetic to the fact that the applicant or her children may be subject to some negative comments and attitudes, particularly as the applicant has lived in Australia since 2002 where attitudes are generally more progressive. However as has been discussed above, it does appear that attitudes are changing significantly in Botswana. In regards to employment, legislation prohibits discrimination based on sexual orientation. There are many indications that social attitudes have progressed significantly. In an article in Africa Review, reference is made to increasing openness in Botswana about speaking about LGBTI issues, including attempting to get condoms made available in prisons:
It has one of the fastest growing economies and a high Hiv/Aids prevalence rates in the world but that is not all. Today, in a bid to tackle what is seen as a growing issue, Botswana is increasingly getting more open about gay issues.
On the streets, public transport even media, you hear a country speaking with itself, on these issues, and this has attracted a lot of attention- approval and criticisms in equal measures.
Gays and lesbians in Botswana appear surprisingly emboldened, coming out to announce their sexual preferences in public.
More liberal views about gay and lesbian rights have been heard from some of the top religious and political figures in Botswana.

To crown it all, Botswana gays and lesbians have mustered the courage to challenge laws outlawing same sex relationships in court.
The pro-gay lobbyists may not have the numbers it needs to sway opinion but there are some heavyweight sympathizers-newspaper readers and participants in callers-in radio programmes who are pushing their agenda.[20]
[20] Africa Review, “Gay issue finally brings Botswana together”, 3 March 2011, - accessed 16 August 2017
The Tribunal is sympathetic to the wish of the applicant to remain in Australia given that she has lived here since 2002 and is familiar with life in Australia. However, taking all the matters set out above into account, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group, “lesbians in Botswana”, or any similar group, were she to return to Botswana in the reasonably foreseeable future.
Complementary protection
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
When asked if she wanted to make any submissions in relation to these provisions, the applicant said that she is “out”, and not shy about who she is. Her character will make her stand out, and people do wonder if she is a girl or boy. In Botswana, people have strong opinions and this will put her in the limelight. She likes to state her opinions and could not modify her opinion. She will stand up for what she believes in.
Section 36(2)(aa) 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’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal is not satisfied, based on country sources referred to above, that there is a real risk that the applicant would be arbitrarily deprived of her life, that the death penalty would be carried out, or that she would be subject to torture. The Tribunal is also not satisfied, based on these sources that there is a real risk that she would be subject to cruel or inhuman treatment or punishment, or degrading treatment or punishment from the authorities in Botswana.
The Tribunal has considered closely whether there is a real risk that the applicant would be subject to cruel or inhuman treatment or punishment, or degrading treatment or punishment from members of the community. The Tribunal notes that her family were not accepting of her sexual choices, which may illustrate a wider anti-lesbian sentiment and country sources do indicate social conservatism.
Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. The Explanatory Memorandum states that the first type of cruel or inhuman treatment or punishment, an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, refers to an act or omission which would normally constitute torture, but which is not inflicted for one of the purposes or reasons under the definition of ‘torture’.[21] An act or omission which causes pain or suffering, but which does not rise to the level of ‘severe’ may nonetheless amount to cruel or inhuman treatment or punishment so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. Although this aspect of the definition does not refer directly to the ICCPR, the use of the more general ‘cruel or inhuman in nature’ may invite consideration of international jurisprudence as to what may be regarded as cruel or inhuman. The Complementary Protection Guidelines direct decision-makers to interpret this part of the definition by reference to international jurisprudence on Article 7 of the ICCPR[22] and contain examples of treatment which has or has not been found to breach that Article.[23] In international jurisprudence, ‘inhuman treatment’ has been said to include such treatment that ‘deliberately causes severe suffering … which, in the particular situation, is unjustifiable’.[24]
[21] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 at [16].
[22]        Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 22, as re-issued 21 May 2015.
[23]        Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, sections 27 and 28, as re-issued 21 May 2015.
[24]        Greek case, European Commission on Human Rights, Application Nos 3321/67, 3322/67, 3323/67, 3344/67 (18 November 1969), 12 Yearbook of the European Convention on Human Rights 170, 186, cited in Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press, 2007) at 141.
The wording used in the provisions suggests a significant level of harm: “severe” pain or suffering, or pain or suffering which could reasonably be regarded as “cruel or inhuman”. Given this wording, as well as country sources set out above, which indicate wider acceptance of LGBTI people, the fact that an LGBTI organisation and LGBTI events operate openly, and that articles have suggested that gays and lesbians are announcing their sexual preferences publicly with support from some public figures, the Tribunal is not satisfied that there is a real risk (more than a remote or insubstantial risk) of cruel or inhuman treatment or punishment. While there may be some social ostracism, discrimination or insults directed at her as she is outspoken, sometimes people do not know if she is a boy or girl, and she is openly lesbian, the Tribunal is not satisfied that such behaviour would reach the level of significant harm envisaged pursuant to this provision.
Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. The definition requires ‘extreme humiliation which is unreasonable’. Whether or not humiliation is ‘reasonable’ will be a question to be determined with regard to the particular circumstances of the case. For example, in SZRSN v MIAC the Federal Magistrates Court found that forced separation of an applicant from his children would not meet the high threshold of ‘extreme humiliation’ which is unreasonable.[25] Similarly, in SZSFX v MIBP the Federal Circuit Court considered that exposure to pollution does not of itself amount to ‘degrading treatment’ for the purposes of s.36(2)(aa) of the Migration Act.[26] That Court has also rejected that a fine and brief period of detention pending bail could amount to ‘extreme humiliation’.[27]   In light of these cases, and the country information referred to earlier in this decision, the Tribunal is also not satisfied that there is a real chance that social ostracism, discrimination or insults which the applicant may experience, would reach the level of harm envisaged pursuant to this provision involving “extreme” humiliation which is unreasonable.
[25]        SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [66] (upheld on appeal, but this aspect of the reasoning was not expressly considered: SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013)). In SZRUT v MIAC [2013] FCCA 368 (Judge Driver, 15 July 2013) at [26] the Court accepted that ‘criticism’ on its own could not amount to significant harm given the definition in s.5 and s.36(2A) of the Act (upheld on appeal, although the Court did not make any findings on that point: SZRUT v MIBP [2013] FCA 1276 (Rares J, 27 November 2013))
[26]        SZSFX v MIBP [2013] FCCA 1309 (Judge Driver, 18 October 2013)
[27]        AGH15 v MIBP [2015] FCCA 1797 (Judge Smith, 11 June 2015) at [56] (upheld on appeal, but this aspect of the reasoning was not considered: AGH15 v MIBP [2015] FCA 1181 (Perry J, 4 November 2015).
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Botswana there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Jane Marquard
Member

ATTACHMENT A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.