1613777 (Refugee)

1613777 (Refugee) [2019] AATA 3422 (18 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613777
COUNTRY OF REFERENCE:                   Peru
MEMBER:Tania Flood
DATE:18 February 2019
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 18 February 2019 at 2:26pm
CATCHWORDS
REFUGEE – protection visa – Peru – member of a particular group – homosexual males – assault – fears harm from those who previously harmed him – fears further physical attacks – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 438(1)(a), 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIMAC v SZRHU (2013) FCAFC 91
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Peru, applied for the visa on 23 May 2015. The delegate refused to grant the visa on the basis that there was insufficient evidence available to be satisfied that the applicant is homosexual.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Material under a public interest non-disclosure certificate
The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identification of the applicant which is not in dispute.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Peru now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Peru there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
The applicant is from Lima, Peru. He is Catholic. His parents and [sisters] reside in Lima.
He had to leave Peru to avoid his family and friends knowing he is gay. If he returns to Peru his family and friends will disown him for bringing shame on them.
Since being in Australia he has lived openly as a gay person. When he returned to Peru briefly to visit his family he had to pretend to be heterosexual.
If people in Peru find out he is gay they will physically harm him. He will be thrown out of his home and people from the neighbourhood will treat him badly.
He was harmed in the past but kept it a secret. When he was [age] years old he was raped by four boys. They warned him not to tell anybody about it or they would kill him. He was too scared to report the rape to anybody.
In Peru people are discriminated against because of their sexuality regardless of which part of the country you live in.
The authorities in Peru will not protect him because they are anti-gay.
The applicant was invited to attend a protection visa interview with the Department but failed to attend. The delegate was not satisfied on the available evidence that the applicant is homosexual. Therefore the delegate could not be satisfied that he would suffer serious or significant harm on return to Peru for this reason.
Country information
A Q&A report prepared by the Country of Origin Information Service section of the Department had the following to say about social attitudes towards homosexual men in Peru:
Same-sex relationships are legal in Peru.[1] Nevertheless, reports indicate that social attitudes are generally conservative and LGBTI individuals experience societal discrimination and violence.
[1] ‘LGBT Rights in Peru’, Equaldex, undated, CISEDB50AD4381; ‘Foreign Travel Advice’, UK Foreign Office, 19 May 2017, CISEDB50AD4384
Discrimination
Information published on the Peruvians Government’s Ombudsman Office website states that LGBTI people have been systematically discriminated against and stigmatized because of their sexual orientation and gender identity.[2] According to the Ombudsman, LGBT individuals face a series of problems in the exercise of their rights because of prejudices, stereotypes and stigmas about their sexual orientation and gender identity.
[2] ‘Derechos humanos de las personas LGBTI: Necesidad de una política pública para la igualdad en el Perú (Human rights of LGBTI people: The need for a public policy for equality in Peru)’, Defensoria del Pueblo, 2016, CIS38A80124259.
The US Department of State (USDOS) reports that in 2016 LGBT persons remained some of the most marginalised individuals in the country and frequently were targets of discrimination. According to the report “Local (non-government organisations) NGOs reported that discrimination based on sexual orientation and gender identity was widespread, culturally sanctioned, and largely underreported due to fear of violence or additional discrimination. NGOs reported that LGBTI youth were frequently targets of severe bullying that contributed to higher rates of suicide than for non-LGBTI youth.[3]
[3] ‘Country Report on Human Rights Practices 2016 – Peru’, US Department of State, 3 March 2017, p.25, OGD95BE927025
Astrea Lesbian Foundation for Justice9 similarly reports that Peruvian LGBTI individuals experience ‘entrenched’ stigma and discrimination in public and private life, human rights abuses and violence.[4] According to the report, there is ‘limited political interest or will to advance’ LGBTI rights. In March 2017, VICE News reported that ‘equal rights are a long way off for LGBT people in Peru’.[5] The article cites a 2015 study by the Peruvian government’s Ministry of Women and Vulnerable Populations that found 90 per cent of the LGBT population in Peru had experienced some type of gender-related violence. In its 2017 annual report, USDOS noted that reports by local NGOS indicated ‘95 per cent of LGBTI citizens had experienced some type of violence or discrimination directed at them because of their status as LGBTI persons.’[6]
[4] ‘Peru LGBTI: Landscape Analysis of Political, Economic and Social Conditions’, Astrea Lesbian Foundation for Justice, 2015, p.4, CISEC96CF15427
[5] ‘Protesting progress’, Stewart, K, VICE News, 21 March 2017, CXC9040668422
[6] Country Report on Human Rights Practices 2016 – Peru’, US Department of State, 3 March 2017, p.26, OGD95BE927025
In February 2017, CNN quoted an activist at the Homosexual Movement for Lima as stating that some evangelical priests in Peru ‘have come out strongly in recent months preaching that homosexuality is a disease that can be cured.’[7]
[7] ‘La compleja realidad de ser gay en América Latina’, CNN, 27 February 2017, CISEDB50AD4370.
In January 2017, Legislative Decree No.1323 was passed prohibiting discrimination on the basis of sexual orientation and gender identity and providing a more severe punishment for hate crimes committed against LGBTI individuals by adding sexual orientation and gender identity among the aggravating circumstances of crime included in the Criminal Code.[8] However, in April 2017 the Constitution and Regulations Committee of Congress voted to repeal this language from the Criminal Code. The amendment has been sent to congressional leaders for reconsideration.
[8] ‘Protesting progress’, Stewart, K, VICE News, 21 March 2017, CXC9040668422; ‘PGA Calls Upon the Congress of Peru to Defend the Legal Protections on Sexual Orientation and Gender Identity Contained in Legislative Decree Number 1323’, Parliamentarians for Global Action, 2 April 2017, CISEDB50AD4369
Employment discrimination on the basis of sexual orientation and/or gender identity is not explicitly prohibited under Peruvian law. According to USDOS, during 2016:
Government officials, NGOs, journalists, and civil society leaders reported official and societal discrimination against persons occurred based on their sexual orientation and gender identity in employment, housing, education, and health care. [9]
[9] ‘Country Report on Human Rights Practices 2016 – Peru’, US Department of State, 3 March 2017, p.34, OGD95BE927025
Local NGO Astrea Lesbian Foundation for Justice, similarly reports that although there is no official data collected on how LGBTI people fare in Peru’s economy, LGBTI people experience employment discrimination. According to the report, in some cases LGBTI people have experienced blackmail or been fired by employers because of their sexual orientation or gender identity.[10]
[10] ‘Peru LGBTI: Landscape Analysis of Political, Economic and Social Conditions’, Astrea Lesbian Foundation for Justice, 2015, p.6, CISEC96CF15427
Violence
According to Amnesty International, during 2016 ‘there was a notable increase in violence towards’ marginalized groups in Peru including LGBTI people. Between 2015 and 2016, local NGOs documented 43 cases of ‘risk to personal safety (cases of threats and intimidation)’ and eight murders of LGBTI people.[11]
According to the local NGO Peruvian Observatory of LGBIT Rights and HIV/AIDS, 174 homicides and 382 cases of violence against LGBT persons have been registered across the country since 2005.[12]
In July 2016, Out Right Action International reported, violence against the LGBTIQ community happens every day, and it is necessary to have a legal framework that recognizes the vulnerabilities of this group and adequately prosecutes those who act against their safety.[13]
State protection for LGBTI individuals in Peru
Available reporting indicates that state protection for LGBT individuals in Peru is limited.
In its 2017 annual report, Amnesty International noted that 2016 saw a lack of protection of marginalised groups including LGBTI persons.[14] In February 2017, Pink News, stated that crimes motivated by homophobia are not punished in Peru because the criminal code does not recognise prejudice towards the LGBT community.[15]
USDOS reports that during 2016 government authorities including the police, harassed and abused LGBTI persons, particularly transgender women. The report further notes that NGO studies revealed that law enforcement authorities repeatedly failed to protect, and on occasion violated, the rights of LGBTI citizens. Police violence and harassment particularly targeted transgender women, despite training.[16]
In September 2016, the Ombudsman Office reported that the situation of invisibility and lack of protection of the State towards the community of LGBTI had to end.[17]
A 2015 study by the Peruvian government found that 90 per cent of LGBT residents in and around Lima were victims of some form of violence, of which nearly 19 per cent was perpetrated by state security agents. [18]
In February 2016, dozens of LGBTI activists gathered in Lima’s central square for an annual event called ‘Besos Contra Homofobia’. When the activists kissed, the police told them to leave the square. When the activists refused, police used a water cannon, shields and clubs to push the activists out of the square. Several people were injured. Gatherings in Lima’s central square are banned however USDOS reports “since equally peaceful events have taken place there unbothered, LGBTI activists contended that PNP’s response singled out LGBTI citizens and discriminated against their use of a public space. [19]
[11] ‘Amnesty International Report 2016-2017’, Amnesty International, 23 February 2017, p.295, NG2A465F54;
[12] ‘Peru’s Congress moves to repeal hate-crime legislation’, Anderson, E, Peru Reports, 10 April 2017, CXC9040668449
[13] ‘Peru's New Political Climate Prompts Change For LGBT Rights’, Herrera, S, OutRight Action International, 7 July 2016, CIS38A80124262
[14] Amnesty International Report 2016-2017, Amnesty International, 23 February 2017
[15] ‘Hundreds of people in Peru held a ‘kissathon’ for LGBT rights’, Beresford, M, Pink News, 11 February 2017
[16] Country Report on Human Rights Practices 2016 – Peru, US Department of State, 3 March 2017
[17] Derochos humanos de las personas LGBTI: Necesidad de una politica publica para la iqualdad en el Peru (Human rights of LGBTI people: The need for a public policy for equality in Peru), Defensoria del Pueblo, 2016
[18] ‘Americas’ top human rights body hears first LGBT torture case’, Moloney, A. Reuters, 2 December 2016
[19] Country Report on Human Rights Practices 2016 – Peru, US Department of State, 3 March 2017
A website titled Refugee Legal Aid Information for Lawyers Representing Refugees Globally, Rights in Exile Programme,[20] outlines relevant national law but states that many reports on LGBT rights in Peru lament the lack of effective legal protection: ILGA’s 2012 Report on Lesbian and Gay Rights in the World notes that Peru lacks specific anti-discrimination laws. It is reported that physical violence and other forms of anti-LGBT discrimination abound in Peru, combined with deficient and differential access to justice. The report explains that although the law decriminalises sexual orientation and gender identity the implementation of legal provisions is insufficiently pursued and monitored. Instead, it is reported that violence and discrimination are tolerated by the state and the conservative and traditional Peruvian society.
[20] >
Free movement of South American citizens
CAN
Peru is a member of the organisation known as the Andean Community of Nations (Comunidad Andina de Naciones – CAN). It is an intergovernmental organisation that was created by Bolivia, Peru, Venezuela, Colombia and Ecuador.[21] CAN was founded to encourage industrial, agricultural, social and trade cooperation. It aims to promote the expansion of markets and to guarantee effective economic development in the region.
A background paper prepared for a 2007 International Organisation for Migration (IOM) workshop provides the following information relating to the mobility provisions for citizens of CAN member states:
Entry: As of January 2005, Member State nationals may enter any other Member State as tourists for a period of up to ninety days by presenting a national identification document that is valid and in effect in the issuing country, without the need for a consular visa. This permission to enter may be renewed once for an additional ninety day period. To enter Venezuela Member States nationals must present their passports.
Residency: Andean migrant workers shall enter and reside in a Member State in coordination with the competent national agencies of the host Member State and in accordance with the Community legislation in effect, or if lacking, with relevant national legislation. The Labour Immigration Office shall issue to national workers of other Member States documentation that accredits their status, qualifying them before the competent immigration authorities to make arrangements for residence in the host country.
Employment: Categories of persons: The IAML (Andean Labour Migration Instrument) permits the unhampered movement and temporary residence of Andean Nationals in the sub-region as wage-earning workers. Labour migrants are classified into four categories: individually moving workers, company workers, seasonal workers and border workers. [22]
MERCOSUR
The full member states of another organisation, the Common Market of the South (Mercado Comun del Sur, Mercosur) are Argentina, Brazil, Paraguay, Uruguay and Venezuela.[23] The associate member states are Bolivia, Chile, Colombia, Ecuador and Peru. Associate members do not enjoy full voting rights or complete access to the markets of Mercosur’s full members. Mercosur membership is based on an economic and political agreement to promote the free movement of goods, services and people among member states. Mercosur was created in 1991 when Argentina, Brazil, Paraguay, and Uruguay signed the Treaty of Asuncion, an accord calling for the “free movement of goods, services, and factors of production between countries.” The four countries agreed to eliminate customs duties, implement a common external tariff of 35 percent on certain imports from outside the bloc, and adopt a common trade policy toward outside countries and blocs. The charter members hoped to form a common market similar to that of the European Union, and even considered introducing a common currency. Many experts say Mercosur has failed to live up to its ambitions of integrating the region. [24]
UNASUR
The Union of South American Nations (UNASUR) was formed in May 2008 by leaders of CAN and MERCOSUR. Modelled after the European Union, UNASUR serves as a platform for regional integration on trade, security and politics.[25] The members of UNASUR are Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela.[26] One of the aims of UNASUR upon its creation was the progression towards a South American citizenship, beginning with gradual recognition of the rights of a member state’s nationals to reside in other member states.[27] In December 2014, the concept of South American citizenship was approved by the UNASUR member states. The proposal includes the creation of a ‘single passport’ in order to give nationals of UNASUR states the right to reside and work in any other member state, and provide legal protection to migrants.[28] In May 2015, UNASUR Secretary General Ernesto Samper called for an increase in efforts towards the establishment of South American citizenship.[29] An article published on 14 August 2018[30] indicates that UNASUR has not realised this objective.
FINDINGS AND REASONS
[21] International Organisation for Migration 2007, Free Movement of Persons in Regional Integration Processes, International Dialogue on Migration Intersessional Workshop, 18-19 June.
[23] Romero, S 2012, ‘With Brazil as Advocate, Venezuela Joins Trade Bloc’, The New York Times, 31 July
[24] Immigration and Refugee Board of Canada 2012, Colombia: Whether Colombian citizens are required to have their passports stamped upon exit from and entry into Colombia: if so, whether this procedure applied uniformly at all immigration posts, UNHCR Refword, COL104008, 29 February; Klonsky, J, Hanson S & Lee, B 2012, Mercosur: South America’s Fractious Trade Bloc, Council on Foreign Relations, 31 July
[25] Klonsky, J, Hanson S & Lee, B 2012, Mercosur: South America’s Fractious Trade Bloc, Council on Foreign Relations, 31 July
[26] Robertson, E 2014, ‘UNASUR Moves toward Continental Freedom of Movement, Venezuela makes Equality call, NSNBC International, source Venezuelanalysis.com, 6 December
[27] Immigration and Refugee Board of Canada, 2008, Guyana: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognised and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship. 25 August
[28] Robertson, E 2014, ‘UNASUR Moves toward Continental Freedom of Movement, Venezuela makes Equality call, NSNBC International, source Venezuelanalysis.com, 6 December
[29] UNASUR chief calls for concrete steps towards regional integration, 2015, Global Post,
[30] G Gonzalez, Americas, ‘With UNASUR foundering, Latin America longs for integration’ 14 august 2018 of reference

Attached to the Department file is a copy of the applicant’s Peruvian passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal finds he is a national of Peru and has assessed his claims against Peru.
Fear of harm for reason of his sexuality
The applicant appeared before the Tribunal on 13 February 2019 and the Tribunal discussed with him his background, his reasons for leaving Peru and the fears he has of returning to his country of birth. The applicant reiterated and expanded upon his written claims. He testified that he has not been open about his sexual orientation in Peru other than to a few transsexual friends and one of his sisters. He gave consistent evidence in respect of the claimed sexual assault he experienced when he was [age]. He said he had a sexual relationship with a co-worker in Peru when he was [age] years old which lasted about a year. He said his co-workers bullied and insulted him and members of the public called him names and harassed him when he was out with his transsexual friends. He said that those friends have since moved to Europe following the murder of a gay man. The applicant revealed that he returned to Peru once since coming to Australia but kept his sexuality a secret because his mother has previously made it clear to him that she would not accept a homosexual son. By contrast he said he travelled to [a country] from Australia to visit a friend he met while studying and while there he felt very free to express his sexuality and to engage with the LGBTI community there. In Australia he also enjoys the freedom to express his sexuality. He said he is not in a relationship but has had one night stands with gay men in Australia. He said he frequents gay bars in Sydney and has a profile on a dating site which reveals he is searching for a long term relationship with a man. He produced evidence of his profile at the hearing.
Having considered his evidence, the Tribunal did not form any significant concerns in relation to the reliability of his evidence about core elements of his claims. Overall, the Tribunal found the applicant to be a credible and persuasive witness.
In light of these conclusions the Tribunal accepts the applicant is a homosexual male who previously experienced sexual assault and harassment in Peru for this reason. The Tribunal accepts the applicant has been open about his sexuality in Australia but is afraid to reveal his sexuality to his parents in Peru for fear of being rejected. The Tribunal accepts he fears further physical attacks in Peru on account of his sexuality as well as social stigmatisation and discrimination. The Tribunal accepts the harm he fears amounts to serious harm.
The Tribunal’s reading of the above country information is that systematic discrimination and stigmatisation based on sexual orientation is widespread, culturally sanctioned and largely un-reported in Peru. Based on the above reports the Tribunal is persuaded that a high percentage of LGBTI persons have experienced some type of violence or discrimination in Peru on account of their sexual orientation. Attempts to legislate for more severe punishment of hate crimes appear to have been thwarted and employment discrimination on the basis of sexual orientation is not explicitly prohibited under Peruvian law.
The applicant’s evidence to the Tribunal is that he was previously sexually assaulted by [boys], harassed and insulted when out in public with other gay and transsexual friends and bullied in the workplace. He said that transsexual friends of his were physically assaulted. Further, he said his mother has openly told him that she would reject any son of hers who declares he is homosexual. The Tribunal finds his experiences are not inconsistent with the above reporting on the situation of LGBTI persons in Peru.
First and foremost the applicant fears he will once again be subject to physical violence and assault if he returns to Peru. He also said he fears harm from the persons who previously assaulted him. During the hearing the Tribunal pointed out that this event occurred when he was [age] and thereafter he remained living in Peru without any harm from those persons until he came to Australia at the age of [age]. The Tribunal put it to him that the chance of him being harmed by those same persons appears remote. Nevertheless, the applicant reiterated that he fears physical harm from others in Peru.
Having regard to s.5L of the Act the Tribunal is satisfied that the harm the applicant fears is on account of his membership of a particular social group – homosexual males in Peru. In view of the country information cited above the Tribunal accepts there is a real chance he may suffer serious harm in Peru for this reason. The Tribunal notes that the applicant cannot be required to alter his sexual orientation or conceal his true sexual orientation so as to avoid a real chance of persecution. The Tribunal also considers that the real chance of persecution faced by the applicant relates to all areas of the country, which is reportedly socially conservative and heavily influenced by the Catholic church.
The Tribunal has considered whether there are effective protection measures available to the applicant in Peru against the harm he fears. The above country information reports indicate that state protection for LGBTI persons in Peru is lacking. Indeed, the USDOS report indicates that during 2016 government authorities including the police, harassed and abused LGBTI persons. The report further notes that NGO studies show that law enforcement authorities repeatedly failed to protect the rights of LGBTI persons despite training. In September 2016 the Ombudsman’s Office publicly acknowledged the limitations of state protection. This information is supported by the applicant’s own evidence which is that when in Peru he and his friends sought the help of the police in connection with a physical attack on a transsexual friend and were told they were asking for trouble and that is why they get beaten.
Based on the country information outlined above and the applicant’s oral evidence in respect of his experience in Peru, the Tribunal is satisfied that effective protection measures will not be available to him if he returns to Peru and faces serious harm, including serious physical harm, on account of his sexual orientation.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsection 36(3), (4), (5) and (5A) of the Act. Subsection 36(3) provides:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied.
The Full Federal Court in MIMAC v SZRHU (2013) FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
Peru is a member of CAN and member state nationals can enter other member states for up to 90 days without the need for a visa. This permission to enter may only be renewed once. Peru is also an associate member of Mercosur. There is information that Peruvians are able to travel as tourists to the member and associate member states of Mercosur. However, as an associate member state it is doubtful that they enjoy the same entry and residency rights as full member states. While Peru is a member of Unasur the available information indicates that the Unasur objective of creating a South American citizenship to enable member state nationals to reside in other member states has not been realised.
The Tribunal considers that if the applicant attempts to gain entry to another South American country it would be for reason of seeking asylum rather than as a ‘tourist’ or on an approved work agreement. Once this purpose is disclosed there is a significant risk that he will not be afforded the right to enter the other country under agreements such as the CAN and/or Mercosur agreements. The Tribunal is therefore not satisfied that the applicant, as an asylum seeker, has a right to enter and reside in another member state.
The Tribunal considers there is no conclusive information before it that the applicant has a right to enter and reside in any other country. The Tribunal finds therefore that s.36(3) does not apply to exclude the applicant from Australia’s protection obligations.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 3422

18 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice