1713126 (Refugee)

[2021] AATA 635

1713126 (Refugee) [2021] AATA 635 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713126

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Melissa McAdam

DATE:2 February 2021

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 02 February 2021 at 2:59pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – member of particular social group – homosexual – written claim of emotional distress because of breakdown of relationship with girlfriend – threat of serious harm by ex-girlfriend’s husband – self-awareness of sexuality but conformity with societal expectations – exploration of sexuality in Australia – establishment of relationship – sexuality and relationship hidden from family and community – country information – credibility – written claim disadvantageous to application for protection – reasonable explanation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASE
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

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 dependants.

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 5 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Indonesia, applied for the visa on 20 January 2017.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant is a [Age] year old man from Indonesia. The following is a summary of the claims and information he provided in his Protection visa application:

   a.He was born and lived in [Town] in Central Java in Indonesia.  He submitted his Indonesian passport issued in in 2012 and his Indonesian National Identity Card. 

   b.He is single and of Muslim religion.

   c.He worked as [an Occupation 1] with a [company] in Indonesia.

   d.He departed Indonesia [in] November 2016 and arrived in Australia on the same day on a Visitor visa.

   e.He left Indonesian because he was seeking peace of mind. He was depressed in Indonesia because his ten-year relationship with his girlfriend broke down.  She wanted to marry another man.  He could not focus at work and was fired from his job.

   f.He will not be able to handle his emotions if he goes back to Indonesia because his environment was always with his girlfriend and now she belongs to someone else.

   g.Everywhere he goes in Indonesia it will be the same. 

   h.The authorities will not get involved because it is a personal problem.

   Departmental Interview

10. There is no record of the applicant attending a Departmental interview.

    Delegate’s Decision

11. The Delegate was not satisfied that the applicant's fear of persecution was for any of the reasons provided in subsection 5J(1)(a) of the Act. The Delegate found that the applicant was not a refugee as defined in section 5H and section 36(2)(a) of the Act.

12. The Delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the Indonesia, there was a real risk he would suffer significant harm as outlined in s. 36(2)(aa) of the Act.

13. The applicant submitted a copy of the Delegate’s decision to the Tribunal.

    Information to the Tribunal

    Pre-Hearing Submissions

14. With his review application on 21 June 2017 the applicant submitted a letter stating:

    Due to my past relationship with my former girlfriend, the safety of my family and I is threatened. The husband of my former girlfriend is threatening to cause a serious harm to my family and I, if I were to go back to my hometown. Her husband is deeply depressed knowing that her wife is still in contact with me. I believe my long term relationship of 10-years with my former girlfriend is affecting her relationship with her husband and now tearing her marriage apart. With all due respect, I do not have any intention to cause any turbulence in their marriage. I am seeking to your kind understanding to examine my case which concerns the safety of my family and I. I am more than willing to provide you with any details or proof which may be of concern to your decision.

15. On 23 August 2020 the applicant provided the following written statement to the Tribunal:

    I, [the applicant], hereby kindly request for a consideration on my appeal to remain in Australia to seek protection from Australian government.

    During my time living in Australia for more than 3 years, I come to know myself and able to be myself. What about to tell you is literally the hardest thing that I have to do. I am Gay.

    Being born and raised in Indonesia, which has the largest population of Muslim in the world and also being raised as a Muslim, being Gay is not something that you admit openly without getting severe punishment and being rejected by my family, friends and community. Being Gay is a Sin

    I have known myself is different from a young age. I have tried to conform with what Indonesian society expect. I had a girlfriend and those are the dark times and I do realise now due my sexuality I have those trouble relationship

    During my time in Australia, I am very lucky to have found someone that has the same situation as myself which is a Muslim and Gay and he is happened to be raised in Indonesia and now an Australian citizen. I have been living with him since February 2019. To be able to come to term with my sexuality and to be proud of it, is a feeling that I do not want to let go.

    It is true that Australia is a lucky country. We respect other people differences and beliefs. Who would not want to live in this country. I have a stable job here and able to support myself. I am surrounded by people that respect me regardless of my sexuality.

16. On 2 November 2020 the applicant submitted the following written information to the Tribunal:

    -     A [Leisure activity 1] fee receipt with the passenger names: [Mr A] and the applicant.

    -     Several photographs of himself, with another man, [doing Leisure activity 1].

    -     Photographs of the applicant and the same man at a swimming pool together.

    -     Photographs of the applicant and three other men at Parliament House in Canberra.

    -     A joint itinerary to [Destination 1] from a Travel Agent, in the names of [Mr A] and the applicant.

    -     A link to a YouTube clip of the applicant and [Mr A] on holiday together in [Destination 1].

    -     A joint flight booking for the applicant and [Mr A] from Sydney to Perth in March 2020.

    Tribunal Hearing

17. The applicant appeared before the Tribunal on 2 November 2020 and 15 December 2020 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s partner, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

18. The following is a summary of the information provided by the applicant at the hearing:

    a.He was born and lived in Central Java.  He also lived in Jakarta for five years between 2012 and 2016.  At the end of 2016 he came to Australia.  He worked in Indonesia as an [Occupation 2].

    b.He still practices his religion.

    c.His mother and [brothers] live in Indonesia. His mother is in [Town] and his brothers are in Jakarta.  His father has passed away.

    d.He last contacted his mother two weeks ago about the COVID situation. He told her everything in Australia is alright. He reminded her not to go anywhere as it is worse in Indonesia.  Otherwise his family there are good.

    e.The Tribunal put to the applicant that in his Protection visa application he had claimed that he was applying for protection because his girlfriend wanted to marry another man.  He replied yes because her parents arranged a marriage and forced her.  The applicant broke off his relationship with his girlfriend. 

    f.The Tribunal put to the applicant that in his Protection visa application he claimed to be heartbroken by his former girlfriend.  He responded that his relationship broke down because she arranged to marry another man.  He felt bad at the time because he could not marry her, but he did not want to marry her.  The Tribunal asked why he was heartbroken then.  He responded that he made a mistake.  He had stated he was heartbroken because the relationship could not be continued.  Her name was [Ms B].  He was not in love with her.  She was a friend and he loved her as a friend.  But the relationship developed apart from his sexuality.  He was in denial about his sexuality, and uncomfortable and he felt alone for a long time. 

    g.The Tribunal put to the applicant that in his Protection visa application he wrote that he could not live in Indonesia because his girlfriend belongs to someone else.  He responded that is no longer accurate because the relationship was not genuine. 

    h.The Tribunal asked the applicant why he wrote to the Tribunal in June 2017 about problems with his former girlfriend’s husband.  He responded that it is true that her husband went to the applicant’s mother and threatened her if the applicant returned.  The applicant does not know exactly why the man made the threats but his former girlfriend communicated to the applicant and she cried and asked him why he left her and let her marry this man.

    i.Quite a long time ago, in junior high school, he became aware he is gay.  When he saw a handsome man he suddenly realised he likes men more than women.

    j.When he first arrived in Australia he travelled around to Melbourne, Brisbane and Sydney.  He never explored his sexuality in Indonesia but he has in Australia.  He downloaded ‘[App 1]’, a gay application. He met a number of people.  He went to a gay club [called] ‘[Venue 1]’.  He went to some gay bars and a gay sauna.

    k.He downloaded [App 1] when he moved to Sydney in February or March 2017.  He has met people through [App 1].  He wanted to meet men to date or “hook up” with.  He wanted to explore his sexuality, to know how the gay community is.  He went to a gay bar. He was still discreet so all he did was check out the customers and have a chat and conversation. At the time he felt good but unusual. It took several visits before he became comfortable about the gay community.

    l.When he visited [a specified] area it was during the Mardi Gras parade. He watched and enjoyed the parade. He went into a gay club, [Venue 1], when the parade was over but was not used to is as it was new to him.  There were a lot of people there, dancing and kissing. It was very noisy and he had a drink and that was all.

    m.He has been to [Venue 1] many times.  He felt more comfortable after his first visit.  He went there to party and dance. Behind [Venue 1] is a sauna so he frequently visited the sauna after dancing for potential hookups and sex.

    n.When he first realised he is gay he felt guilty and different from his brother.  He was concerned he was sinful.

    o.He knew only one gay person in Indonesia.  He was part of the applicant’s English club. He told the applicant he is gay.  He told everyone.  He was feminine so everyone knew.  The applicant confronted him and asked him if he is gay and he said yes. He told the applicant he might be transgender.  The applicant knows there are a lot of gay people in Indonesia.  He felt he had a friend who is gay even though he could not tell his friend he is gay because of religion.  But he felt he was not alone.

    p.He is now living in [Suburb 1] with his partner, [Mr A].

    q.In Australia only his partner and one other person, [Mr C], know the applicant is gay. He is not yet telling other people. Maybe he will tell some friends and co-workers eventually.  He is still not comfortable to come out.  [Mr C] is also from Indonesia and is gay.

    r.The applicant would like to socialise more with other gay people but he has an agreement with his partner not to disclose they are a gay couple. His partner does not feel comfortable to disclose his sexuality to others because of religion.

    s.The applicant is not aware of any gay Muslim groups in Australia.

    t.He met his partner in the [Venue 2] gay sauna in early 2018, Summer or Autumn.  His partner is also from Indonesia but moved to Australia a long time ago.  He has become an Australian citizen.  They realised they are both Muslims and could talk about their situation.  After [Venue 2] they had dinner together.  Then they arranged to meet the next day.

    u.The applicant felt good around his partner because he had finally met a guy who really understood and spoke the same language.  There were no barriers to communicating. Since then it became more serious.  They started meeting other regularly.  They have travelled together to other parts of Australia.  Often they go on weekends to the national park or the beach. There is a nudist beach at [Suburb 2] they have been a couple of times.

    v.He realised he was attracted to [Mr A] when they first met in [Venue 2].  The applicant felt comfortable talking to [Mr A] who was in a similar situation.  [Mr A] is good looking man. He is really nice and caring. The applicant feels that he and [Mr A] have a chemistry. The applicant feels that he loves [Mr A] and wants to be with him forever.  He is the one the applicant needs in life.  They have lived together for over a year.  Before they moved into their home in [Suburb 1] together [Mr A] lived in [Suburb 3]. 

    w.He and [Mr A] have not discussed marriage because they are Muslim.  For now they are keeping their relationship hidden but he doesn’t know about the future. It is very difficult for them to consider coming out as Muslims. There are huge barriers. Out of respect to their parents who raised them they keep their relationship hidden.  If the applicant is able to settle in Australia and become a citizen here then he might disclose to his mother and close friends. But this in the distant future.

    x.He and [Mr A] have discussed their future. The urgency is for their immediate future to ensure the applicant do not have to leave.  Their last option if it looks like the applicant will have to leave will be marriage.

    y.The applicant is interested in gay culture. He likes to watch a gay movie or series on Netflix.  He recently watched a movie he loved which was ‘Call Me By your Name’.  It was the story of a pair of men that met in Italy - an American and an Italian. They shared time together and fell in love. But the American had to return to the USA so they got separated.  The parents of the Italian knew of their feelings and were okay about it.  At the end the American guy made a phone call and informed the Italian that he has decided to hide his sexual orientation and marry. The American is older than the Italian but not really old. The thing the applicant liked was that he could see their difficulties and feel lucky he has a partner and they can be together.

    z.He no longer goes out to gay venues. He and his partner like watching horror movies together.  They also like eating out. Their favourite food is Indonesian food.

    aa.The Tribunal put to the applicant that his current claims are at odds with what he originally wrote in his Protection visa application and that it seemed difficult for both claims to be true.  The applicant responded that he made a mistake at the time by prioritising that claim about his girlfriend.  He was confused at the time.  He did have a relationship with her but it was not really genuine because he knew he was gay.  He had the relationship to satisfy the demands of society.  He wrote that to immigration because he just wanted the experience of living in a country where LGBTI people could be legal.  He made a mistake.  At that time he was still confused about his future and if that life was for him as it is very against his Islamic faith and is not allowed.  He was not sure he would be happy as a gay man as he had not met the right people.  When he wrote those statements he had not met his partner.

    bb.He arrived in Australia in November 2016.  He applied for protection at that time because he wanted to stay legally in Australia to experience his sexuality and explore that side of himself.  He had not been able to do this before because he was hidden in Indonesia and not open with his family.  He did not explain this in his original Protection visa application because he then lived with several friends so was surrounded by strict religious people. They had told him about the Protection visa application and helped him fill out the form.

    cc.The Tribunal asked him why he would write a reason in the Protection visa application that was unlikely to be accepted as a reason for needing protection, so would likely result in his visa application being refused and possibly quite quickly. He responded that he wanted to stay longer legally but did not know how long he would get. 

    dd.The Tribunal asked him what he had intended to do once the original Protection visa application was refused.  The applicant responded that he planned to go back to Indonesia but he then contacted several friends who said if he applied for a review he could stay longer legally, so he did.  He needed more time because he was just starting to feel comfortable living in Australia and accepting himself as gay.  If the review was refused he planned to return to Indonesia if he had no option.  He made a mistake at the time.  He should have prioritised the fact that he is gay.

    ee.The Tribunal asked why he stated he wanted time to explore his sexuality in Australia yet continued to live in secret as a gay man.  He responded that he has several friends who know he is gay. But he is introverted and doesn’t socialise much. He has work friends but they are not really close friends.  He tells his friends at work that he has a partner. They assume his partner is a woman. Most of his friends on his social media sites are from Indonesia.

    ff.He is not open because he respects his partner who wants to be discrete and be secret. He has friends he has met on [App 1] and [App 2]. Some he still meets and contacts.  He has several gay friends he met on [App 1] who have found a partner.  He follows them on [Social media].  He last made a comment to a post of a friend on [Social media]. The friend’s name is [Mr D].  He is in Sydney.  They sort of hooked up but it did not work out because they were too similar sexually.  They have stayed in contact on-line.  [Mr D] is a nice person.  [Mr D] posted a photo of his new boyfriend and the applicant congratulated him.  The applicant will send a screen shot of the posts to the Tribunal and also ask [Mr D] to write a letter.

    gg.He waited until just before the hearing to inform the Tribunal he is gay because he was still uncertain about his future. He discussed his future with his partner and told him about his visa. They planned they would apply for a Partner visa.  After he was invited to the hearing he gave the information about himself and his partner as they hoped they would get a reference.  They knew that when they apply for a partner visa it will be difficult because he had applied for a Protection visa on the basis of his ex-girlfriend.  They hoped declaring their relationship to the Tribunal would help their partner visa application. They have not yet consulted a Migration Agent about making a Partner visa application. They are waiting until after the Tribunal decision.

    hh.The Tribunal put to the applicant that s.423A of the Act required it to draw an unfavourable inference about the credibility of a claim not raised in the application before the primary decision was made, if satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.  The applicant responded he was previously uncomfortable about his sexuality but now is comfortable, after meeting his partner.

    ii.The information he wrote in his original application about his emotional reaction to his former girlfriend leaving him was not true.  The information about his problem with his former girlfriend’s husband is true.  The husband is jealous of the applicant and threatened the applicant’s family. The applicant does not know why.  At that time his ex-girlfriend was still in contact with the applicant.  Several days later he sent people to the applicant’s house that the applicant would have an accident if he returns to Indonesia. His family accepted this as a reason for the applicant not to return.  His ex-girlfriend has not contacted the applicant since then.  So there is no longer a problem with her husband.

    jj.The applicant and his partner have a mutual friend, [Mr C].  They know each other through [Social media].  He has been sponsored to Australia by his company. He is not applying for a protection visa.  He is gay but not openly.  He and the applicant have another mutual gay friend called [Mr E] who also lives in Sydney. They are not close. They met through social media. The applicant has also met [Mr E] in person at [Suburb 4]. They are both interested in [Leisure activity 2].  The applicant knew him in Indonesia but did not know he was gay then.  The applicant saw him when he was browsing on [App 2].

    kk.[Mr C] is Muslim. [Mr E] was born Muslim but he is not religious and does not believe in God.

    ll.The applicant does believe in God, Islam and the Prophet Mohammad’s teachings.  His religion has a big impact upon the applicant’s identity as a gay person.  It is written in the Koran that homosexuality is not allowed, but the applicant can’t change his sexuality.  So he does what he needs to do as a Muslim but still accepts his sexuality.  He is gay and a Muslim.  He has a right to be different.  He has a right to have faith and to worship.  He believes that God always loves him and does not see his sexuality as a bad thing.  God is always with him, forever.

    mm.There is an LGBT community in Indonesia but not like here.  The applicant is not aware of support organisations for LGBTQI people in Indonesia.  He is focussed upon his life in Australia.

    nn.His brothers do not know he is gay.  His ex-girlfriend does not know he is gay.

    oo.He and [Mr A] do not have any joint bank accounts.  They have upcoming Christmas plans to go on a joint holiday with [Mr C] and [Mr E], possibly to [Destinations 2-4].  [Mr E] has not yet met [Mr A].

    pp.His partner’s birthday is [Date].

    qq.The applicant has no other reason to fear harm in Indonesia. It is just because he is gay. He also fears his ex-girlfriend’s husband but does not know him.

1. The following is a summary of the information provided by the applicant’s partner, [Mr A], at the hearing:

   a.He became an Australian citizen in about 2010. He came to Australia as a student in 1995. He then applied for permanent residence as a graduate from university as a skilled migrant, on points.

   b.He met the applicant in a sauna in 2018.  They don’t celebrate anniversaries. 

   c.He does not have gay friends. He could say things to the applicant that he could not say to others.

   d.He considers himself Muslim but Islam doesn’t recognise gays.  He has come out to himself and is okay with himself.  The applicant has been his support.

   e.He has not gone out of his way to meet other gay Muslims in Australia because he is okay with himself. With the applicant it is something special. They have a special connection.

   f.He has other friends. One of them is [Mr F] who is also Indonesian Muslim. [Mr F] knows he is gay. He has no other gay friends because he is from a Muslim country and it would cause some embarrassment.  His relationship with the applicant is his first ever relationship.

   g.His parents and cousins ask him when he will marry. Luckily he is far away from them. But he can’t come out.

   h.He would like the applicant to live in Australia with him forever.  If the applicant has to leave Australia they will have to discuss what to do.  Maybe they will apply for a partner visa.  Marriage would be the last option because they would have to inform their parents. They don’t need to be married if they are happy already.  His parents are elderly and he doesn’t want to be responsible for upsetting them.

   i.He and the applicant go on holiday together.  They recently went to [Destination 5] over the long weekend.  They have also been to [Destination 6] and [Destination 1]. They stay in a one bedroom room or unit together when they go on holiday. They still are not affectionate in public, but it depends where they are.  When they were in [Destination 6] people thought they were a couple and they admitted they were because it was a safe environment.

   j.He is not good at cooking but the applicant is. They often go to an Indonesian restaurant in [Suburb 5].  He and the applicant share similar values.  The applicant is a good listener and understands his issues and the way he thinks. The applicant is a comfort to him.  He is selfish because he wants the applicant to be with him all the time. When you find someone you don’t want to let him go.

   Post Hearing Submission

2. Following the hearing the applicant submitted the following written material to the Tribunal:

   -     A letter from [Mr C] stating that he is a friend of the applicant and [Mr A] and knows them as a same sex couple. He has gone to several lunches and dinners with them. Recently he went with them to an overnight [Destination 7] [Leisure activity 3] trip in September.

   -     A photograph of the applicant, [Mr A] and [Mr C] at the beach.

   -     A screenshot of a text conversation between the applicant and “[Mr D]” discussing [Mr D] breaking up with his [Country] boyfriend and finding a new boyfriend.

   -     Screenshots of a text conversation between the applicant and “[Mr D]” discussing whether [Mr D] can write a support letter for the applicant as he is one of the few people who knows the applicant is gay.  [Mr D] expresses some reluctance because he has not seen the applicant for a long time and he thinks the applicant is asking him to confirm the applicant is in a relationship which is not something he actually knows.  The applicant clarifies, no he just wants [Mr D] to confirm they met through [App 1] and that the applicant is gay.

   -     Screenshot of a text conversation in 2017 between the applicant and “[Mr F]”, arranging to meet up and expressing intimate feelings for each other.

   -     Screenshot of a recent text conversation between the applicant and “[Mr F]” about [Mr F]’s new boyfriend, the applicant’s boyfriend, and the applicant’s Tribunal matter. [Mr F] expresses surprise that the applicant is not out to many people as he has “met many guys”.

   -     100 pages of a print out log of text messages between the applicant and [Mr A], covering the period from the end March 2018 to the end of December 2020. The messages are in Indonesian. An informal translation of some of the messages through the Google Translate service shows that some of them are intimate, expressing love and missing. There are also heart images scattered throughout the texts.

   -     A Statutory Declaration by [Mr C] stating that he met [Mr A] in July 2020 before he met the applicant.  [Mr A] told him he was in a relationship with the applicant.  A couple of weeks later he met [Mr A] with the applicant. They have both become his close friends.  People who don't know them personally would not notice if they are a couple. He has been to their place a couple of times and knows that they live together and sleep on the same bed. During their joint trip to [Destination 7], they booked their own room too. But they are very discreet with their relationship so people who don't know them, won't notice anything.

   -     A Statutory Declaration by [Mr E] in which he states that he has known the applicant from the [App 2] application last year in June 2020. He is gay himself and uses [App 2] for dates.  Because they both a share similar [Leisure activity 3] they met for a [Leisure activity 3] walk around [Suburb 4]. They have become friends.  Recently the applicant introduced him to his partner [Mr A]. They show love to the extent where it will develop into an everlasting relationship.

   -     A Statutory Declaration by [Mr G], stating that he has known the applicant since 2013 when they met at an English Language Community Club in Jakarta, Indonesia. They became close friends due to a shared interest in [music] and travelling. They have travelled together and attended music festivals together regularly over the past 7 years. Between 2013 and 2016 they spent time together on a monthly basis and have met up every year since, except for 2020 due to the Covid-19 pandemic. They continue to stay in touch over social media.  Around 5 years ago, he had a suspicion that the applicant was bisexual and asked him at the time, but the applicant denied it. Despite this, he still believed it to be true and put his denial down to him not being ready to talk about it and because in Indonesia it is condemned.  A few weeks ago, the applicant came out to him over the phone and told him that he is gay and is dating a man. He believes the applicant and knows that he is a trustworthy person who has always looked out for him and others.

   Country Information

3. DFAT’s most recent ‘Country Information Report Indonesia, published in January 2019, contains the following:

   LGBTI - The Penal Code does not criminalise gay identity or same-sex intercourse. Some local laws criminalise same-sex activity, including in South Sumatra provincial laws and the cities of Pariaman and Palembang municipal laws. Gay sex is punishable with up to 100 strokes in Aceh, a punishment that was meted out for the first time in May 2017 when two men accused of being caught in bed together were lashed 83 times each. On 13 July 2018 two men received 87 strokes each for charges of same-sex intercourse. National laws discriminate against the LGBTI community while not criminalising same-sex relationships or conduct directly. Indonesia does not recognise sexual orientation or gender identity as grounds for protection in its anti-discrimination framework.

   Pornography laws have been used to prosecute gay men engaging in consensual sex. That law contains provisions that identify gay sex as ‘deviant’, and carries penalties for offences of up to 15 years in prison. Pornography is broadly defined and can include gestures or conversations deemed to be pornographic. Since 2016 an increasing number of incidents where police, or vigilantes who later report to police, have invaded private spaces including homes, hotel rooms and private clubs looking for LGBTI people. Victims have been paraded naked in public and identified in the media on some occasions, and as a result may have lost their jobs. In 2017 Human Rights Watch reported that police apprehended 300 people for their presumed sexual orientation or gender identity. This included the arrest of 141 gay or bisexual men in one raid in May 2017 of a gym and sauna in Jakarta. LGBTI people who are charged with these offences have difficulty in accessing legal representation due to discrimination by lawyers and judges. In October 2018, two men were arrested for hosting an online social media page to connect LGBTI people and charged for spreading immorality under the Electronic Transactions and Information Law. The charge can incur a prison term of up to six years and maximum fine of IDR 1 billion/AUD 100,000. In late 2018, observers have noted a nascent trend of district level governments considering local regulations to ‘ban’ LGBTI, however it is not currently reflected in discussions at the national policy level.

   LGBTI people generally avoid interaction with police where possible, as they believe police to be more likely to harass or blame LGBTI victims of crime than they are to provide access to justice. International observers have reported cases where police have colluded with Islamist organisations in harassing the LGBTI community. Officials often ignore formal complaints from LGBTI victims in assault cases, particularly if the suspect has police connections.

   Significant social stigma attaches to LGBTI people: a 2013 study by the Pew Research Center found 93 per cent of Indonesians surveyed believed society should reject homosexuality. This stigma has contributed to a ‘don’t ask, don’t tell’ mentality. Although dozens of prominent Indonesians are ‘known’ to be gay or lesbian, including politicians and celebrities, or to have gay or lesbian family members, they rarely acknowledge this publicly. Considerable social pressure pushes gay men and lesbians to enter into heterosexual marriages, and many lesbians are reportedly victim to ‘corrective rapes’. Family violence against LGBTI individuals is reportedly common. The term ‘LGBT’ itself attracts considerable hostility from many Indonesians, who view it as a western imposition. Since 2016, cancellations of public events, gatherings and discussions by LGBTI people have increased.

   Families and officials have subjected LGBTI people to ‘therapy’ intended to convert them to heterosexuality including, in some cases, after arrest. Psychologists in Indonesia are divided on whether or not LGBTI identities are a mental illness. In the past, LGBTI people have been enrolled in government disability programmes.

   …

   Older LGBTI people may live in communities together, or with one other older LGBTI person. Because of traditional family mores, older LGBTI people may find themselves without family support because they did not have children.

   …
   DFAT assesses that LGBTI people face a high risk of societal discrimination: traditional views about sexuality and gender restrict their participation in the workforce and the broader community. This applies particularly in areas outside of Jakarta and Bali and for those from poorer backgrounds. Those perceived to be LGBTI may face a risk of violence, particularly if living in religiously conservative areas, including Muslim and Christian communities. DFAT assesses that LGBTI people face a moderate risk of homophobic, transphobic or anti-waria violence. LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes. LGBTI people living in Aceh face a high risk of official and societal discrimination and violence.

4. The Human Rights Watch World Report 2019 for Indonesia provides the following information in respect of sexual orientation and gender identity:

   Indonesian authorities continued to fail to uphold basic rights of LGBT people, fueling a spike in the country’s HIV epidemic.  Police arbitrary and unlawful raids on private LGBT gatherings, assisted by militant Islamists, has effectively derailed public health outreach efforts to vulnerable populations.  HIV rates among men who have sex with men (MSM) have consequently increased five-fold since 2007 from 5 to 25 percent.

   In January 2018, police and Sharia police in North Aceh detained 12 transgender women and forced them to disrobe.  National Police Chief Tito Karnavian ordered an investigation into the raids.

   A criminal code bill, designed to replace the 1918 Dutch-colonial era criminal code, underwent several rounds of debate and revision in parliament.  Some law-makers pushed to include criminal sanctions for adult consensual same-sex conduct – a law Indonesia has never previously had – justifying it on the grounds that such provisions “protect” LGBT people from vigilante violence. The government representative on the drafting committee said he opposed criminalizing same-sex conduct, but at the time of writing the process had stalled and language referring to undefined “deviant sex” remained in the draft.

5. The US Department of State’s 2019 Human Rights country report for Indonesia highlighted “violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons” and “criminalization of same-sex sexual activities at the local level” as “significant human rights issues” in Indonesia.  The report contained the following detail:

   Although no national law criminalizes same-sex sexual activity, producing media depicting consensual same-sex sexual activity is a crime and classified as deviant. Penalties include fines of IDR 250 million to seven billion ($17,900 to $500,000) and imprisonment from six months to 15 years, with penalties able to be increased by one-third for crimes involving minors. In February the Ministry of Communication and Information Technology ordered Instagram to shut down an account that published comic strips depicting the struggles of gay Muslims in the country, calling it pornographic and claiming it violated information and electronic transactions law.

   Aceh’s sharia law makes consensual same-sex sexual activities illegal and punishable by a maximum of 100 lashes, a fine of approximately IDR 551 million ($39,400), or a 100-month prison term. According to Aceh’s sharia agency chief, at least four witnesses must observe individuals engaging in consensual same-sex sexual activities for them to be charged.

   Antidiscrimination law does not apply to LGBTI individuals, and discrimination against LGBTI persons continued. Families often put LGBTI minors into therapy, confined them to their homes, or pressured them to marry.

   In the run-up to the April elections, NGOs reported an increase in discriminatory bylaws targeting LGBTI individuals, which they believed were issued to appeal to conservative Islamic voters. For example, in November 2018 lawmakers in the West Sumatra city of Pariaman approved new articles in the city bylaws on public order criminalizing “immoral acts” by LGBTI individuals.

   … In some cases the government failed to protect LGBTI persons from societal abuse. Police corruption, bias, and violence caused LGBTI persons to avoid interaction with police. Officials often ignored formal complaints by victims and affected persons. In criminal cases with LGBTI victims, police investigated the cases reasonably well, as long as the suspect was not affiliated with police.

   Religious authorities publicly caned a gay couple outside a mosque in Banda Aceh in July 2018 for engaging in same-sex sexual activities.

   On August 31, Padang residents raided the home of an LGBTI couple. One of the individuals, a guest lecturer at West Sumatra Muhammadiyah University, was fired from his job on September 3 and asked to return to Jakarta. As of October the case was under police investigation.

   …

   LGBTI NGOs operated openly but frequently held low-key public events because the licenses or permits required for holding registered events were difficult to obtain.

6. In February 2017 The Guardian reported on a “spike” in LGBTI hatred in Indonesia:[1]

   [1] The Guardian, “Why LGBT hatred suddenly spiked in Indonesia”, Kate Lamb, 22 February 2017 at

   In the predominately Muslim nation of Indonesia, being gay is something seldom admitted outside tight-knit social circles, and in country where marriage and procreation is paramount there is only so long that some can keep family pressure at bay.

   In the past, vitriol against LGBT occasionally flared up and died down soon enough, a one-off flash in the pan – an Islamic group up in arms about a transgender paegant, or queer film festival, a gay couple arrested and abused by police. And then all of a sudden in 2016, an unprecedented tide of vitriol and violence was unleashed against sexual and gender minorities across the country. Following a series of discriminatory comments from government ministers and officials, reinforced by medical professionals and Islamic clerics, moral panic and paranoia around LGBT set in.

   The sustained backlash started early in the year. In response to a brochure stating that LGBT should be barred from the University of Indonesia campus, the minster, Muhammad Nasir, noted: “There are standards of values and morals to uphold. A university is a moral safeguard.” Things spiralled. At a seminar on maternal health one local mayor suggested mothers should avoid feeding their children instant noodles, a staple in Indonesia, because their time should instead be spent on nutritious cooking and teaching their children how not to be gay.

   The country’s top Muslim clerical body, the Council of Indonesian Ulema (MUI) issued a fatwa condemning homosexuality, while the broadcasting commission urged television stations to refrain from showing effeminate men. Then government minister Yuddy Chrisnandi, stated: “Of course it is inappropriate for civil servants to be [homosexual],” he said, “Having more than one wife for a man is still normal…but LGBT is another issue.”

   Comment after comment kept the national hysteria rolling, like kerosene on a fire. The National Psychiatric Association announced LGBT a “mental disorder” while the child protection commission observed that LGBT “propaganda” could “brainwash” children into developing “deviant” sexualities.

   The minister of defence, Ryamizard Ryacudu, likened the LGBT movement to a proxy war, one more dangerous than the threat of nuclear warfare. “It’s dangerous as we can’t see who our foes are; out of the blue everyone is brainwashed. Now the [LGBT] community is demanding more freedom, it really is a threat. In a proxy war, another state might occupy the minds of the nation without anyone realising it. In a nuclear war, if a bomb is dropped over Jakarta, Semarang [another town in Java] will not be affected; but in a proxy war, everything we know could disappear in an instant – it’s dangerous.”

   We thought at the time they were just trying to distract from corruption, but we were wrong. It kept rolling and getting bigger,” explains activist Yulita Rustinawati, from the LGBT advocacy organisation, Arus Pelangi. The impact was of course, higher incidents of violence,” she continues, “Houses were raided, LGBT people were evicted, and it happened with legitimation from ministers, mayors and government officials who were making the comments.”

   Each inflammatory comment made the news, and was subsequently picked up by hardline religious groups, who started profiling, intimidating and attacking LGBT individuals in their communities, sometimes with the tacit approval of local officials.

   ...

   The momentum of the backlash has since subsided, although incidents of violence, intimidation, evictions, and in some cases collusion between police and hardline Islamists to target LGBT people, has not stopped. At Arus Pelangi, about 10 reports of such cases come in each month.

   …

   While anti-LGBT sentiment is not new in Indonesia – Islamic hardliners have long targeted the community, sometimes with impunity – the backlash took on new colours and allegiances last year. “The fear was deeper this time around in part because it was driven by high-level government officials, coming down from people in official positions of power,” says Knight. “This bedrock of a government that remains somewhat neutral on this issues was gone, was completely ripped out from underneath them.”

   Regionally, the lack of legal support for sexual and gender minorities in Indonesia runs counter to current trends. At the same time that Indonesia’s psychiatric association was labeling LGBT a mental disorder, other mental health bodies in Asia, including the Philippines, Thailand and China, have been removing homosexuality as a diagnosis, and taking the extra step of issuing LGBT non-discrimination statements.

1. In November 2018, Amnesty International noted that LGBTI communities were facing increasing crackdowns from the police and the municipal police, with four series of arrests and public humiliations having taken place in the previous month.[2]

   [2] Amnesty International, Indonesia: Crackdowns on LGBTI people hit alarming level, 6 November 2018, at

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant submitted his Indonesian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Indonesia. The Tribunal assesses the applicant’s claims against Indonesia as his country of nationality and receiving country.

   Credibility

3. The applicant’s claim before the Tribunal is that he fears harm in Indonesia as a gay man.  As pointed out above, this claim is markedly different from the information he presented in his initial Protection visa application.

4. The Tribunal notes that s.423A of the Act requires the Tribunal to draw an unfavourable inference about the credibility of a claim not raised in the application before the primary decision was made, if satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.  The Tribunal accepts that being uncomfortable and uncertain about his homosexuality and wanting to keep this aspect of himself hidden from the Indonesian and Muslim community would be a reasonable explanation for his initial nondisclosure. Whether or not this is so depends largely upon whether the Tribunal accepts that the applicant is genuinely gay.

5. In his written Protection visa application the applicant did not claim to fear harm in Indonesia but claimed he could not live there because he was heartbroken by the breakdown of his relationship with his former girlfriend.

6. It is difficult to understand why the applicant presented this initial information if, as he now claims, he is gay and has been aware since high school that he is gay.  It is also difficult to understand why this initial information would be false given it was actually disadvantageous to a Protection visa application.  The genuineness of the information seems to be underscored by the lack of any calculated reason for inventing it.

7. That said, the applicant’s current evidence that he is gay is persuasive.

8. An explanation for why the applicant would present himself as heartbroken by his girlfriend may be that the applicant is bisexual, as suspected by one of his friends, but the applicant himself has not suggested this.

9. The applicant stated to the Tribunal that it is true that he was in a relationship with a woman but his statements regarding the emotional impact of his relationship breakdown were not true. He also stated, in contradiction with his written application, that he ended the relationship not his girlfriend, and that he had omitted information regarding his struggles with his awareness of his true sexuality.  He declared that his reasons for presenting this information were that at the time he merely wanted to apply for the visa to extend his stay in Australia, and thereby gain further time to explore his sexuality here; and that his religiously conservative flatmates helped him fill in the application form so that the information included presented him as heterosexual.

10. While these are two quite odd reasons it may be that the applicant lacked a motivation at the time to write something accurate or sensible and did feel restrained by his flatmates’ oversight of the application. If he is or was bisexual then this may also somewhat explain his focus upon his feelings about his breakup with a woman.

11. As stated above the Tribunal has found his evidence that he now identifies as gay and has been in a stable relationship with a man since early 2018 persuasive.  He gave detailed evidence about how he met his partner and their relationship together. He was also able to explain how his religious beliefs, worries regarding the perceptions of the Indonesian community, and overriding concern for his parents have kept him very discrete about his sexuality in Australia. This has been further emphasised by his partner’s strong wish to also keep his sexuality secret from the community.

12. The applicant has submitted evidence from witnesses that the applicant is gay, as well as photos and other documents showing that the applicant and his partner live and holiday together. The text messages the applicant submitted with other men he met on [App 1], and particularly with his partner, also support his claim to be gay.

13. It remains questionable that the applicant would present unhelpful information which appears opposite to his claim to be gay, in his initial application.  The Tribunal therefore has some remaining concerns regarding the truth of this claim.  However in light of the reasonably persuasive evidence the applicant has presented, the Tribunal cannot be confident that the applicant is not genuinely gay.  The Tribunal therefore gives the applicant the benefit of the doubt that he now identifies as gay and is in a lasting gay relationship with a man he wishes to build a future with.

    Fear of Harm in Indonesia

14. The Tribunal has accepted the applicant is gay and is in a gay relationship.

15. The country information referred to above indicates there has been a marked increase in societal and governmental attacks on the LGBTI community in Indonesia since 2016.  The LGBTI community faces discrimination, arrest under pornography laws, discrimination from police, lawyers and judges when dealing with the criminal justice system, a moderate risk of violence, and physical and sexual abuse upon arrest.

16. On the basis of the country information the Tribunal considers there is a real chance in Indonesia of a gay person encountering physical assault, arrest, serious harassment, ostracism, denial of full access to services and employment, and denial of proper access to the criminal justice system, if it is known the person is gay. 

17. The Tribunal notes that the applicant is not open about his sexuality in Australia and that he wishes to live discreetly as a gay man.  The question therefore arises whether he could live discreetly as a gay man in Indonesia and avoid the chance of serious or significant harm there.

18. The applicant is a practicing and devout Muslim, who remains part of the Indonesian Muslim community in Australia.  The applicant spoke about his fear of the discovery of his true sexuality by his broader community, because homosexuality is considered unacceptable.  He fears their negative reactions would make it difficult for the applicant to continue to be part of the community in Australia.  The applicant also fears his parents being informed that he is gay as he believes this would be devastating for them.  Whether or not his fears are justified is unknown. It may be that he finds some acceptance amongst at least some in the Indonesian Muslim community in Australia and by his parents; or he may not.  In any event it seems to be his perception that being gay is considered adversely by his community and family that motivates him to keep his sexuality hidden in Australia.  To a small number of people he trusts he has been open about his sexuality.

19. The Tribunal accepts that if the applicant returns to Indonesia he would continue to be involved in the Muslim community and continue to practice Islam.  He is now in his [age] and would be subject to family and community questions and pressure about his marital status and family plans.

20. Given their apparent commitment to each other the Tribunal considers if the applicant returns to Indonesia it is likely the applicant’s partner would join him there, either on a permanent basis or at least substantial visits.

21. Even if the applicant tries to keep his sexuality hidden in Indonesia the Tribunal considers it would be only a matter of time before the community and his family suspect he is gay. He would be unmarried, with no overt interest in relationships or marriage with women and living with another unmarried man.  The small number of Indonesians who do know the applicant is gay would also add to the risk of eventual exposure.

22. Given the presence of societal, police, and local authority action against gay people, including in their homes, the Tribunal considers there is a real chance that such action would be taken against the applicant, as a suspected gay man, despite his attempt to be discreet and keep his sexuality hidden. 

23. In any event there should be no obligation, even a self-imposed obligation, upon the applicant to keep his identity as a gay man hidden in Indonesia to stay safe from harm. Under the s.5J definition of ‘well-founded fear of persecution’, an applicant cannot be required to take steps to alter or conceal his true sexual orientation to avoid a real chance of persecution [s.5J(3)(vi)].  Further, the Tribunal notes that the “threat of serious harm with its menacing implications” may itself constitute persecutory conduct (Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43] per McHugh and Kirby JJ).

24. The Tribunal finds that physical assault, arrest, serious harassment, ostracism, denial of full access to services and employment, and denial of proper access to the criminal justice system amount to serious harm.  The Tribunal is satisfied that there is a real chance of the applicant being subjected to such harm in Indonesia. The Tribunal finds that the applicant’s homosexuality is the essential and significant reason for the harm feared by the applicant and that gay men are a particular social group in Indonesia. The Tribunal finds that the harm involves systematic and discriminatory conduct given it will be done to the applicant selectively and intentionally.

25. The Tribunal has considered whether the applicant could access effective protection from the Indonesian authorities or by relocating within Indonesia.  Having regard to the country information, the Tribunal finds that the applicant could not expect protection from the authorities in Indonesia.  Having regard to the level of anti-gay activity throughout the country, including in Jakarta, the Tribunal finds that the real chance of persecution exists throughout Indonesia, and that effective protection measures are not available to the applicant anywhere in Indonesia.

26. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in   Indonesia as defined by s.5J of the Act and meets the definition of a ‘refugee’ in s. 5H(1)(a) of the Act.

    Section 36(3)

27. There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.

    Conclusion

28. 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).

    DECISION

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

    Melissa McAdam
    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.

    …