1721152 (Refugee)

1721152 (Refugee) [2023] AATA 3633 (18 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jia (Jack) Li
CASE NUMBER:  1721152
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Roslyn Smidt
DATE:18 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 18 August 2023 at 11:32 AM
CATCHWORDS
REFUGEE – Protection Visa –Malaysia – sexuality – membership of the particular social group – lesbians in Malaysia – applicant has a well-founded fear of persecution– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Malaysia, applied for the visa on 15 March 2017. The delegate refused to grant the visa on the basis that on the limited evidence provided she was not satisfied that the applicant’s fears were well-founded
The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
BACKGROUND
The applicant is a [age]-year-old single woman of Chinese ethnicity and Buddhist religion. She lived in Ipoh city in Perak until 2005 after which she lived in Kuala Lumpur. She completed her schooling in December 2007. She worked in [a field] for several companies including [Company 1] until March 2016. After that she worked as a [Occupation 1] until she departed for Australia. She arrived in Australia on[date] December 2016 and applied for protection on 15 March 2017.
CLAIMS AND EVIDENCE
The applicant fears that she will face serious or significant harm if she returns to Malaysia because she is a member of the particular social group of lesbians in Malaysia.
In the application lodged on 15 March 2017 the applicant said that she left Malaysia because of her sexuality but provided little additional information. At the hearing she said that application had been prepared by a man recommended to people she met in Australia. She provided him with an account of her claims but did not check the application before signing it. At the time she had limited English and little knowledge of how to apply for protection. As discussed below, I found her evidence at the hearing credible and convincing and. I accept this explanation for the lack of detail in her initial application.
The applicant’s claims were discussed during an interview with the delegate on xxx. The delegate accepted that she was gay, but after considering the available evidence, found that she did not face a real chance of experiencing serious or significant harm if she returned to Malaysia.
The applicant said that she first became aware of her sexuality when she was about [age]. She did not tell anyone apart from her cousin and best friend. She tried to look like a normal girl. In 2005, when she was aged [age] her family relocated to Kuala Lumpur for her father’s work. She became friends with a girl at her school and after some time their friendship developed into a romantic relationship which lasted about 2 months. It ended when a student saw them kissing the in toilets and reported their behaviour to a teacher. The teacher reprimanded her and called her father to tell him what had happened. Her father also reprimanded her. He had often expressed anti-gay views and when she returned home in the evening, he beat her. She tried to deny being in a relationship with her girlfriend, but he did not believe her.
The applicant remained at the same school for about month. During that time the other students teased her and bullied her and the teachers watched her closely to ensure she did not continue the relationship. The applicant continued to have a bad relationship with her father. They fought most days and he warned that he would kick her out of the house or take her to a doctor for treatment if she did not become normal. He was sometimes physically violent towards her.
In June 2005 the applicant persuaded her father to send her to a different school. She did not have any relationship during the time she attended that school and students at that school were not aware of her sexuality. She continued to have problems with her father at home and some of the neighbours became aware or at least suspected that she was gay.
When she became an adult, the applicant tried to be more independent of her father. When she was about [age] years old [in about 2009] she made contact with other gay women in Kuala Lumpur on [social media] page and began to socialise with them. Some of them dressed in a boyishly manner. When she walked down the street with them some people looked at them with a disgust. Some people yelled verbal abuse, and some made fun of them. She continued to socialise with these women about once a months until she left Malaysia.
When she was about [age] years old [in about 2012] the applicant moved out of her parental home. She lived independently in Kuala Lumpur from then until her departure for Australia. She did not have any direct contact with her father during that time. She remained in contact with her cousin and an aunt.
The applicant was attracted to some of the women that she worked with. She would befriend them and after the friendship grew, she would express her feelings. However, they all reacted badly, called her names and told her to stay away. In about 2014 she had feeling for a young Muslim woman who worked in the same office. They became close friends. She believed that this friend had feelings for her. They did not have an intimate relationship but spent a lot of time together. She would often drive her friend home and they would sit in the car for long periods talking. Her friend would sometimes rest her head on her shoulder. This upset her friend’s family who suspected that the relationship was more than an ordinary friendship. They warned her to stay away from her friend or they would report her to the police. Colleagues at her workplace were also suspected that she might be gay and talked about her behind her back.
In September 2014 the applicant changed jobs and began to work at a [workplace]. In 2015 she began an intimate relationship with a Christian woman who worked at the [workplace] and also lived independently. The relationship lasted about 18 months. They were discreet about their relationship at work, but she believed that some of her colleagues suspected she was gay. She did not have any problems, but she believed they were talking about her. Towards the end of the relationship one of her cousins saw her and her girlfriend when they were out on a date and told her father. She was told that he had threatened to find her and beat her to death. However, he did not have her address and she did not have any contact with him.
The relationship with her colleague ended in about March 2016. Her girlfriend ended the relationship and began a relationship with a man. She told the applicant that there was no future for them in Malaysia and suggested that she should also change and have relationships with men. The applicant was deeply distressed and behaved irrationally, including arranging to meet her former girlfriend’s boyfriend to negotiate with him about continuing the relationship.
The applicant was distressed and unable to cope with the stress of her work at the [workplace]. She resigned and began to work as [an Occupation 1]. One of her passengers told her he liked her and wanted a relationship. He was persistent so she told him she was gay so he would stop. He said that she was that way because she had never been with a man and tried to put her hand on his penis. She chased him out of the car. Later he texted her to say she was doing a sinful thing and she had to stop, or he would report her. He also told her he would help her to change so she blocked his number.
Following these events, the applicant was very depressed and saw no future for herself in Malaysia. She could not be open about her sexuality, her attempts to form lasting relationships had all failed and even her former girlfriend was urging her to change, which she could not do. A friend suggested that she should travel to Australia to seek protection, which she did in March 2017.
After arriving in Australia, the applicant worked on farms for several years. She had feelings for some of the girls she met and browsed some dating apps, but because she was in a regional area and people moved around a lot none of them developed into a lasting relationship.
In early 2021 the applicant moved to Sydney and began to work at a factory where she met [Ms A], [Country 1] woman who is also an asylum seeker in Australia. She quickly realised that [Ms A] was gay. [Ms A] wants to transition to the male gender and had her breast reduced or removed in [Country 1]. They soon began a relationship and in May 2021 moved in together. All of their friends and colleagues know about their relationship. They are open about their affection and have attended the gay parade and developed friendships with other gay couples. On 25 November 2021 they registered their relationship. They share their incomes and expenses.
The applicant said that she and [Ms A] would not be able to continue their relationship in [Country 1] or Malaysia because they would not have the right of permanent entry to each-others’ homelands and because they were both at risk of serious harm in both Malaysia and [Country 1]. In addition, if she were able to return to Malaysia with [Ms A] her father would likely find out she was living with a transgender person and she believed he would attempt to kill them both.
The applicant said that it would be impossible for her to live as an openly gay person in Malaysia because homosexuality was considered illegal and gay people often face discrimination and persecution. Punishment for homosexuality can range from fines to imprisonment or corporal punishment. She acknowledged that many people believed that these punishments were seldom applied but submitted that this was because most gay people kept their sexuality secret because they did not dare to come out publicly.
At the hearing, the applicant added that one of her cousins had told her that a male cousin had recently come out as gay. Her father and other family members blamed her for this and her father was extremely angry. She feared that he would seek her out and possibly kill her if she returned to Malaysia.
I advised the applicant that I was aware that homosexuals faced problems in Malaysia. However, it was also my understanding that some homosexuals were able to be at least somewhat open about their sexuality and that the situation was often worse for Muslims than members of other religions. The applicant agreed that this was correct but said that despite the faced that she was not Muslim she feared that she would face serious harm if she returned to Malaysia.
COUNTRY INFORMATION
The following overview is based on DFAT Country Information Report Malaysia, 29 June 2021.
Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. (Article 377A of the Penal Code specifically relates to male relationships, but female relationships also appear to be banned). Numerous state-level syariah based laws also prohibit both same-sex relations and non-normative gender expression.
The Barisan Nasional (BN) coalition government which ruled the country from independence until 2018 was strongly opposed to the ‘promotion’ of LGBTI issues and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for individuals, prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. The short-lived Pakatan Harapan administration was generally unwilling to consider any substantial changes in its approach to LGBTI issues. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.
Malays/Muslims face additional problems due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland had caused politicians from across the political spectrum to adopt anti-LGBT positions. In-country sources report that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
A loose coalition of NGOs and individuals reportedly works to advocate for LGBTI rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has increased under the current government, has hampered the effectiveness of such advocacy.
State religious authorities have occasionally conducted raids on LGBTI events. In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.
Prosecutions in relation to LGBTI activities have typically been in relation to state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,045) after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010.
Authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs since 2011. The Minister’s comments came while launching a JAKIM e-book guide called ‘Self Transitioning from Homosexuality’, which was available for download in the Google Play Store application. In-country sources report that the JAKIM rehabilitation programs are located in residential locations within neighbourhoods, with participants segregated by sex and subject to curfews. The programs reportedly teach participants how to pray, give them spiritual coaching, and ‘re-educate’ them about their sexual identity. The federal government also reportedly runs seminars for non-LGBTI students, parents, and volunteers to equip them with knowledge on ‘the psychosocial, psychological, and psycho-spiritual needs and health of the LGBTI community’. In August 2020, JAKIM reported a local minority rights activist, Nicole Fong, to the police over her tweets criticising the Ministry’s LGBTI ‘conversion’ therapy A number of state governments also run re-education programs for LGBTI individuals.
There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.

DFAT assesses that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas.
Amnesty International’s 2022/23; The State of the World's Human Rights; Malaysia states that LGBTI people continued to face systemic persecution and discrimination in both law and practice. Authorities censored cultural content deemed to have “LGBT elements”, including in films, resulting in distributors pulling censored films from local cinemas. In October, police and religious authorities raided a Halloween party in Kuala Lumpur and detained 20 people overnight, including trans people and performers in drag, for violating Islamic laws against cross-dressing.
The US Department of State Country Report on Human Rights Practices: Malaysia 2022 states that observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody. It notes that the law does not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and does not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality.
The report notes that depictions of or speech about LGBTQI+ themes are illegal and that several publications had been banned for promoting LGBTQI+ culture.
The report also notes that government funded retreats known as mukhayyam (rehabilitation) that aimed to change LGBTQI+ individuals. As of June 2021, at least 1,733 persons had attended these programs, the government reported. State religious authorities reportedly forced LGBTQI+ persons to participate in “conversion therapy,” “treatment,” or “rehabilitation” programs to “cure” them of their sexuality. “Malaysia’s current rehabilitation and criminalization approaches to LGBT people are based neither in rights nor evidence,” said Thilaga Sulathireh, cofounder of the NGO Justice for Sisters.
Recent reports that the situation for homosexuals in Malaysia may have deteriorated.[1] Malaysia’s law enforcement unit at the Interior Ministry raided Swatch stores at 11 shopping malls across the country in May, including in the capital, Kuala Lumpur, for timepieces bearing what it called “LGBT elements” which could ‘harm morals’. According to a statement from the Ministry the law states that anyone who “prints, imports, produces ... or has in his possession” such items faces a jail term of up to three years. According to the statement, “the Malaysian government is committed to preventing the spread of elements that are harmful or may be harmful to morals”. It states that the watches “may harm … the interests of the nation by promoting, supporting and normalising the LGBTQ+ movement that is not accepted by the general public”.
[1] and Malaysia bans rainbow Swatch watches in its continued crackdown on 'LGBT elements' - ABC News
CONSIDERATION OF CLAIMS AND EVIDENCE
I found the applicant’s evidence during the hearing straightforward and convincing. In addition, her description of her life as a gay woman in Malaysia generally accords with the available country information. I accept that she is a lesbian and her account of her life in Malaysia is true.
I accept that the applicant was physically abused by her father when she continued to live in the parental home. I accept that he physically abused her and pressured her to seek treatment to “change” when he learned of her sexuality. I accept that his animosity towards her has increased because he and other members of her family blame her for the fact that one of her cousins has also come out as gay. However, I am sceptical of the claim that he would seek to kill her if she returned to Malaysia because of this. There is no suggestion that he has actively sought to harm her in anyway since she stopped living with him. That said, it is appears than anti-gay sentiments have increased in recent years, in part because of a hardening in these attitudes by those in power. In these circumstances, it is plausible that the applicant’s father and other family members may seek to harm her in some other way, for example by denouncing her to the authorities or to prospective employers. While this alone would be insufficient to persuade me that she faces a real chance of experiencing serious or significant harm if she returned to Malaysia, it is a factor in my broader consideration of her situation.
Apart from the abuse from her father there is no suggestion that the applicant was physically abused by anyone because she is a le. Nor has she experienced problems with the authorities because of her sexuality. According to her evidence, which I accept, she has concealed or attempted to conceal her sexuality at work and other situations in order to avoid or at least reduce the possibility of abuse or problems with the authorities. Nevertheless, she had been bullied and verbally abused in Malaysia by colleagues and others who know or suspect that she is gay.
It is clear from the evidence that homosexuality is outlawed in Malaysia, albeit by laws which do not use words such as homosexual. It is also clear that many if not most Malaysians have anti-gay attitudes. Muslim Malaysians are at greater risk that others because they are impacted by sharia-based laws enacted in different provinces, but all gays face negative attitudes and discrimination from members of the community and the authorities. Despite this, there are gay activists and organisations and some Malaysians have been relatively open about their sexuality. The evidence indicates that such people have faced varying degrees of discrimination and harassment and some have been arrested. It also indicates that the situation for gay Malaysians has deteriorated in recent years and has continued to do so.
The problems faced by the applicant in the past appear to have been relatively minor, albeit extremely distressing to her personally. However, this is partly because she has concealed or attempted to conceal her sexuality in most of her interactions with the broader community because she fears she would face more serious harm if she was openly gay. Clearly, it would be unreasonable to expect her to continue to conceal her sexuality if she returned to Malaysia to avoid harm.
If the applicant was open about her sexuality and relationships on return to Malaysia, as she clearly wishes to be, she would no doubt face an increased risk of harm. While the likelihood of arrest may not be high, it is clearly a possibility. In addition, she is likely to face some harassment and abuse from her family, the police and members of the broader community. She may also face discrimination in areas such as employment, housing and access to some government services. The deteriorating situation from homosexuals in Malaysia suggests that it is increasingly likely that she will experience some or all of these forms of harm within the reasonably foreseeable future and that the problems she may face will become more extreme.
The possibility that the applicant may experience each of the different forms of harm set out above may not be high. For example, it appears that arrests for homosexual acts are not common and I find it unlikely that she will face further physical abuse from her father. Furthermore, in my view considered in isolation some of the problems which she may face would not amount to serious harm. For example, I am not convinced that occasional low level verbal abuse alone would constitute serious harm. However, after considering all of the relevant evidence and taking into account the cumulative nature of the risk and the harm and the continuing deterioration of the situation for homosexuals in Malaysia, I am satisfied that she faces a real chance of experiencing serious harm which is part of a pattern of systematic and discriminatory conduct directed towards homosexual people in Malaysia.
I am also satisfied that homosexuals in Malaysia constitute a particular social group as set out in Australian law (see below). Homosexuals share the characteristic of their common sexuality. That common characteristic distinguishes the group from Malaysian society in general. It is not a fear of persecution. It is fundamental to a member’s identity and the member should not be forced to renounce it.
After considering all of the relevant evidence, I am satisfied that the applicant has a well-founded fear of persecution if she returns to Malaysia within the reasonably foreseeable future for reasons of her membership of the particular social group of homosexuals in Malaysia.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Roslyn Smidt
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.
…

[2023] AATA 3633

18 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies