1711750 (Refugee)

[2021] AATA 4737

1711750 (Refugee) [2021] AATA 4737 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711750

COUNTRY OF REFERENCE:                   Kyrgyzstan

MEMBER:Mara Moustafine

DATE:25 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2021 at 10:23am

CATCHWORDS

REFUGEE – Protection visa – Kyrgyzstan – political profile – work for European organisation – support of LGBT activism – imputed anti-government political opinion – perceived as pro-
Western supporter – credibility – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423A, 499

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275 

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of Kyrgyzstan. He arrived in Australia [in] November 2015 on a Visitor visa that was due to cease on 11 December 2015. He applied for a protection visa on 10 December 2015.

   Evidence before the Department

   Protection Visa Application

3. According to his protection visa application, the applicant was born in [year] in [Kyrgyz] Republic.  He is of Kyrgyz ethnicity and no religion and reads speaks and writes in Kyrgyz, Russian and English. His parents and one brother live in Kyrgyzstan while another brother lives in [another country]. His wife, whom he married in April 2015, and step-daughter live in Bishkek, where the applicant lived before coming to Australia in November 2015.

4. After completing high [school], the applicant completed a Bachelor [degree] (September [year] to August [year]) and [another] course (November [year] to August [year]) in [Country 1]; an English language course [in Country 2] (August 2007 to February 2008) and a [course] at [an educational facility in Country 2] (February to May 2008).

5. He served [in a certain capacity] from September 2003 to July 2008 then worked in [Country 3] (August 2008 to November 2013) first in hospitality, then [in particular areas for a company]. Between November 2013 and September 2014, he [was] self-employed [in] Kyrgyzstan, then worked as [an occupation] for [Organisation 1]in Bishkek (September 2014 to November 2015).  In this capacity he travelled to [Country 4]to undertake a [course] ([June] 2015).

6. The applicant departed Kyrgyzstan legally [in] November 2015 via the Kazakhstan auto border crossing on his own passport issued in [2014].

7. In a statement provided with his application, the applicant stated that in March 2015 he and his wife joined [Organisation 2], an organisation defending LGBT rights, to which they were introduced by her homosexual brother. [In] May 2015, they attended a [Organisation 2] event to celebrate [an event], which was broken into by anti-homosexual activists, who injured the applicant and his [friend]. He reported it to the police, but no action was taken. When aggressive anti-homosexual activists and police started following him, he again sought police help and was then called to the police station frequently for no reason. [In] July 2015, the police came to search his home and took him and his wife to the police station, where they were beaten and forced to sign some papers. In the morning his wife was released and told to bring $US 7000 for his release. The police told the applicant to leave the country or risk being jailed forever. He got similar warnings and was beaten by groups of unknown men. He feels safe in Australia but fears for his family in Kyrgyzstan. 

8. With his application, the applicant provided a certified copy of his passport, including biodata pages, a Schengen visa issued [in] May 2015 for travel [in] June 2015 and entry and exit stamps into [Country 4] ([June] 2015) and Kazakhstan ([June] 2015 and [November] 2015). While he indicated that he would provide his birth and marriage certificates at a later date, he did not do so.

   Protection Visa Interview

9. The applicant attended an interview with the delegate on 11 April 2017, a summary of which is contained in the Department’s decision record. Where relevant, the applicant’s oral evidence to the delegate is discussed below.

   The Delegate’s Decision

10. The delegate refused to grant the visa on 29 May 2017 because she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. Highlighting the applicant’s lack of knowledge about [Organisation 2]and inconsistencies between country information and his account of the event where he was allegedly injured, the delegate concluded that the applicant had not been a member of the group, attended the event or been targeted by police as a result. 

    Application for Review

11. On 2 June 2017 the applicant applied to the Tribunal for a review of that decision. He subsequently provided a copy of the decision to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.

12. On 1 November 2018 the applicant submitted to the Tribunal a ten page statutory declaration outlining his background; political profile in Kyrgyzstan; problems in Kyrgyzstan, including his support of LGBT activism and the Kyrgyzstani government’s views on homosexuals and political dissent; and what he fears would happen if he returned to Kyrgyzstan. A media article dated [2015] from [Organisation 2] Kyrgyzstan [was] also provided.

13. Key relevant points in his statutory declaration were as follows:

    a.He fears that if he is forced to return to Kyrgyzstan, he will be seriously harmed or killed.

    b.His extensive experience in military and government related jobs gave him some status in the security community and a substantial profile in the eyes of the Kyrgyzstan establishment. He became seen as a supporter of the West, which is at odds with the pro-Russian stance of the present government and a potential threat to his training and connections.

    c.His work with [Organisation 1], was ‘to implement policies to bring it in line with the other European countries’. At the time [the] government wanted to become more Western. On or around 2010, there was a military coup in the country and the government had become significantly pro-Russian. Since this date, [Organisation 1] [and those who work with/for it] had become associated with the EU and the West in the eyes of the Kyrgyzstan government.

    d.He was able to live comfortably and happily in Kyrgyzstan until he and his wife attended the [Organisation 2] event [in] May 2015. He and his [friend], who worked at [a Country 2 workplace], were beaten by the activists who came to disrupt the event.

    e.After reporting to police the following day, he was summoned by police on various occasions to make reports. On the fourth occasion, around two months after the incident, he and his wife were detained by police on the pretext of searching for weapons and narcotics. While they were holding him, they threatened to frame him with evidence and to send him to jail for tens of years if he did not pay, so they had to bribe their way out. They beat him and made him sign two blank pieces of paper.

    f.After that night he started talking to his friends in the police and military to ask what was going on. His friend in the secret service told him that he had ‘a bad file’, that it had been ordered as a government issue and that he should leave the country for some years, if not forever. He was also told by friends quite high up in the security forces that he had become ‘an enemy of the state’.

    g.He was also beaten, threatened and told to leave the country by strange men on the street.

    h.The Kyrgyzstan government regards homosexuality as a perversion and, like Russia, associates LGBT issues with the West and EU and considers people advocating for LGBT rights as ‘subversive’. Therefore, his association with the LGBT movement would be seen as an anti-government political opinion as well as an undesirable social view that would set him apart from mainstream Kyrgyzstan society.

    i.As [Organisation 1] has previously expressed support for the LGBT community and is seen as clearly Western and associated with Western values, it has been seen as a ‘destructive element’ by the post-2010, pro-Russian Kyrgyzstan government. His work for [Organisation 1] also casts him as a Western sympathiser and a ‘destructive element’ and imputes him with a further anti-government political opinion.

    j.He fears that if he returns to Kyrgyzstan he will be targeted by the government and the police, framed for a crime he did not commit, and possibly be jailed for many years. He fears torture, cruel and unusual punishment, arbitrary imprisonment, and/or potentially being ‘disappeared’ or killed at the hands of the Kyrgyz authorities.

    k.The reasons the government seeks to harm him are a combination of his imputed political views and because he is seen as a high-profile/impact person in Kyrgyzstan due to his long military service and training, such that his stance on Kyrgyzstan political and social developments would need to be monitored. He believes that the Kyrgyzstan government would already have been suspicious of him due to his involvement with [Organisation 1] and may have been suspicious of his pro-Western/anti-Russian views. His attendance at the [Organisation 2] event confirmed any existing suspicions in the minds of Kyrgyzstan authorities that he was pro-Western and/or against the current, pro-Russian Kyrgyzstan government. Due to the combination of these factors, he is seen as a significant threat to the Kyrgyzstan government as a possible subversive element and has led to being assaulted and being constantly monitored and followed in Kyrgyzstan. He is afraid of being killed or jailed without a fair trial in Kyrgyzstan if he returns.

    l.He also fears for his family because if he is locked up, he will not be able to provide or look after them. He fears they also may be subject to monitoring and harassment from the authorities in an effort to coerce him or because they are seen as suspicious due to their connection to him.

    The hearing

14. The review applicant appeared before the Tribunal on 24 August 2021 to give evidence and present arguments. The hearing was held during a “stay at home order” imposed by the NSW Government during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearings by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. No concerns were expressed by the applicant in regard to the hearings being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was conducted in English.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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.

17. 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 themselves 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).

18. 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.

19. 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

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    Credibility

21. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

    Analysis, Findings and Reasons

22. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

23. The applicant’s key claims are that he will face serious harm in Kyrgyzstan from the Kyrgyzstan police and authorities for a combination of factors, including his activism in support of LGBT rights and perceived pro-Western orientation due to his work for [Organisation 1] in Kyrgyzstan, a [Country 2] company in [Country 3] and his military education in [Country 1] and [Country 2]. He fears that if he returns to Kyrgyzstan he may be disappeared, imprisoned without trial or killed by the authorities as he is perceived as an enemy of the state.

24. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to his vague, inconsistent and implausible evidence on key aspects of his claims and other reasons detailed below. 

25. The applicant’s evidence regarding the harm he experienced in Kyrgyzstan was vague and inconsistent.  He told the Tribunal he was beaten up by ‘some guys’ at the [Organisation 2] event and sometime later by police at the police station. When asked to elaborate who beat him at the [Organisation 2] event, he said he did not know who they were, although he later read that the men who attacked the event were from extremist groups Kalys or Kyrk Choro. He confirmed that these men had not targeted him in particular, and that his wife and gay brother-in-law, who had also attended the [Organisation 2] event, had not been harmed in Bishkek since his departure.

26. The applicant emphasised that it was the police who targeted him in Kyrgyzstan, putting him under constant pressure, frequently calling him to the police station, asking questions and telling him he should leave the country as he had no future in Kyrgyzstan. However, the Tribunal has serious concerns about inconsistencies in the applicant’s evidence regarding the timing of his attendances at the police station, particularly the occasion when he claims to have been beaten by police there. 

27. At hearing the applicant told the Tribunal that he could not remember the dates exactly as it had been more than 6 years ago. He thought the first time, when he went to report the [Organisation 2] event, was in May or April 2015. The second time, when he was called in to rewrite his report, was at the end of May. The third time, when he was again called in for questioning about the event, was at the beginning of June. He initially said the fourth time, when the police locked him up, beat him, made him sign blank papers, in which they could then write whatever they wanted and pay a hefty bribe to be released, occurred ‘somewhere in June or July’, then repeated several times that it was in June. By contrast, in his protection visa application the applicant stated that the beating took place when he was taken to the police station [in] July 2015.

28. While the Tribunal might accept that, an applicant might err in remembering a precise date of random events that took place a long time ago, it does not find plausible that he would not remember at least the month of such a sinister encounter at a police station as he described.  The Tribunal also finds dubious that the applicant would not remember whether the first time he was called to the police station to report on being injured at the LGBT group [Organisation 2]’s event was in April or May, given his written evidence that the event, which was fundamental to his claims, took place [in] May 2015.

29. Significantly, the applicant’s claims shifted substantially between his protection visa application to the Department and evidence before the Tribunal. His initial claims for protection related solely to his alleged attendance at [Organisation 2]’s celebration of [an event] in Bishkek in May 2015 and its consequences. In his statutory declaration submitted to the Tribunal, however, the applicant claimed that his attendance at the [Organisation 2] event simply confirmed existing suspicions of his pro-Western inclinations and opposition to the pro-Russian Kyrgyzstan government, stemming mainly from his work with [Organisation 1], as well as his military training in [Country 1] and [Country 2]. He claimed that, as a result of this, he was regarded by Kyrgyzstani authorities as ‘an enemy of the state’. 

1. Asked at hearing why he did not include this information in his protection visa application to the Department, the applicant told the Tribunal that he was just ‘filling in blanks’ in the form because he did not believe he had a chance to stay in Australia and that he just wanted to win some time and prepare to go elsewhere, like Canada. However, after obtaining legal advice he understood that he ‘could make it in Australia’ so expanded his claims. The Tribunal finds this explanation unpersuasive. It considers dubious that the applicant would omit to mention something as serious as being warned he had a profile as ‘an enemy of the state’ if it were true. It also questions the veracity of information provided by the applicant simply to “fill in blanks” in a form submitted to ‘win some time’. As it does not find reasonable the applicant’s explanation as to why he did not present all his claims and evidence before the Department, in accordance with s.423A of the Act[1], the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence.

   [1] Section 423A, which applies to protection visa applications made on or after 14 April 2015, requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.

2. As discussed with the applicant, while he claimed to the Tribunal that his military education in [Country 1] and [Country 2] and employment with the [Organisation 1] and [Country 2] firms in [Country 3] brought him under suspicion with the Kyrgyzstani authorities, he provided no evidence to substantiate having had this education or employment. Moreover, while he told the Tribunal that the language of instruction at the military academy where he studied in [Country 1] was [Country 1 language], in his application form he did not identify [Country 1 language] as one of his languages, only Kyrgyz, Russian and English.  

3. As to the reason he now feared returning to Kyrgyzstan, the applicant told the Tribunal at hearing that the police and security service would jail him straight away as an ‘enemy of the state’. When asked how he knew this, the applicant claimed that, he heard from commanders during his time in the military in Kyrgyzstan that the authorities regarded international organisations like [Organisation 1] and [deleted], as well as LGBT community as spies and ‘enemies of the state’. The Tribunal finds this improbable given his evidence that he claimed to have been in the military between 2003 and 2008, well before the 2010 coup which he claimed resulted in a pro-Russian shift in Kyrgyzstan. The applicant said he believed he would be targeted because he studied at the military academy in [Country 1], a NATO country, trained in [Country 2] and worked for [a] company which was [deleted] for the [Country 2] Government, as well as for [Organisation 1]. Asked whether anyone ever told him this directly, the applicant said it was just what he thought, but had also been told by friends in the police and secret service, that he had a ‘bad profile’ and a file with the security service. However, he was unable to elaborate as to the reason for this, saying that his friend probably would not know as he was from a different department.   

4. Notwithstanding his claim that his work with [Organisation 1] was central to his being regarded as an ‘enemy of the state’, in discussion about the organisation at hearing, the applicant said he didn’t really know what [Organisation 1] was doing in Kyrgyzstan or about its programs, beyond that it represented [Organisation 1]’s interests in Central Asia. He said he only knew about his job, which was [in a particular area] and not about the organisation as a whole as different departments did not know what each other did.

5. Noting the applicant’s evidence that he travelled to [Country 4] [in] June 2015 to attend an [Organisation 1] [course], the Tribunal discussed with him at hearing whether this was before or his alleged detention and beating by police, whether he reported his problems with the Kyrgyzstani police to [Organisation 1], seek their advice or protection in [Country 4]. The applicant said the trip was ‘during that time’ but queried why he would report it. The Tribunal pointed to [Organisation 1]’s involvement in [programs] in Kyrgyzstan[2], as well as [deleted][3] and noted that this was inconsistent with the applicant’s evidence that the Kyrgyzstani authorities regarded [Organisation 1] as an enemy organisation.

   [2] [Deleted].

   [3] [Deleted].

6. The applicant responded variously that he was not aware of [Organisation 1] [doing that]; hadn’t heard about the possibility of seeking asylum till he came to Australia and that Japarov had only become President in 2020, while his statement was 4 years old. The Tribunal pointed out that the applicant had just told the Tribunal that he feared that if he returned to Kyrgyzstan now, he would be arrested as an ‘enemy of the state’, including because of his work for [Organisation 1]. The applicant then shifted his evidence to say that the bigger issue in this regards was his connections with [Country 2] government-related organisations: in particular his work for a [Country 2 company] and his military training in [Country 2]. As put the applicant, in the absence of evidence that he would be targeted for this, which the applicant said he could not provide, the Tribunal regards this as speculation. 

7. Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Kyrgyzstan and the reason he fears harm there or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant ever attended or was injured at a [Organisation 2] LGBT event in Bishkek in May 2015, nor that he reported this to police or was subsequently summoned to the police station on frequent occasions, nor that he was threatened or beaten by groups of unknown men. Neither is the Tribunal satisfied that the police detained, beat or  forced the applicant to sign blank papers, to pay a bribe to be released, or threatened to jail him forever unless he left the country. The Tribunal is not satisfied that prior to leaving Kyrgyzstan, the applicant had come to be perceived by authorities as ‘an enemy of the state’, a ‘destructive element’, a possible subversive element, a holder of undesirable social views or anti-government political opinion or pro-Western views because of his association with the LGBT movement, his work for [Organisation 1], his military training in [Country 1] and [Country 2] or work for [Country 2] companies in [Country 3].

8. It follows that the Tribunal is not satisfied that, if he returns to Kyrgyzstan, the applicant will be targeted by the government and the police, framed for a crime he did not commit, and possibly be jailed for many years without a fair trial, seriously harmed or killed by the Kyrgyzstani police, security services or any other government agents as an “enemy of the state”, because of his work for [Organisation 1],  alleged military training in [Country 1] and [Country 2] or work for [Country 2] companies in [Country 3]. Nor does the Tribunal accept that the applicant’s family will be subject to monitoring and harassment from the authorities in an effort to coerce him or because they are seen as suspicious due to their connection to him.  In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.

9. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, , the Tribunal is not satisfied that there is a real chance that on return to Kyrgyzstan the applicant will suffer serious harm amounting to persecution from the Kyrgyzstani authorities for reasons of his imputed political opinion or for any other reason set out in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should he return to Kyrgyzstan now or in the reasonably foreseeable future. Nor does the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kyrgyzstan, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

   CONCLUSIONS

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

11. 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).

12. 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

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

    Mara Moustafine
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …