1726185 (Refugee)

1726185 (Refugee) [2024] AATA 2126 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726185
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Don Smyth
DATE:22 February 2024
PLACE OF DECISION:  Brisbane
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 22 February 2024 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian of Chinese ethnicity – relationships with women – preference for male clothing – male English name – real chance of suffering physical and other mistreatment amounting to serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

According to information provided in her protection visa application, the applicant was born in Malaysia in 1988. The applicant claims to be a citizen of Malaysia and produced a copy of her Malaysian passport. I accept that she is a Malaysian national.
The applicant arrived in Australia in March 2016. She indicated that she travelled on a tourist visa. She applied for a protection visa on 23 May 2016.
On 13 October 2017, a delegate of the Minister for Immigration and Border Protection (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
According to the details provided in her protection visa application, the applicant attended school in [Town 1], Perak from January 1995 to December 2006. She gave an address in [Town 1], Perak. She indicated that she had worked as [an Occupation 1], initially for [Business 1] from June 2013 to October 2013, and then for [Business 2] in Kuala Lumpur from November 2013 to January 2016.
The applicant made written claims in her application. With regard to her reasons for leaving Malaysia, she stated that she had been forced to marry someone she did not know. She stated that that man demanded that she marry him and give birth to a baby for him. He did not marry her for love. She stated that her family had accepted an amount of money from that man and her father used that money to repay his gambling debt. She stated that she did not accept their demand. She had already told her family that she was a lesbian and would not accept their offer. So they falsely imprisoned her and did not allow her to work or socialise. She claimed to have been imprisoned in her room for about 2 months. She was not allowed to go out or contact others. She could only be let out with their permission.
The applicant stated that she had tried to report to the police but Malaysia was an Islamic country. The police did not accept her report because she was a lesbian. The applicant stated that lesbianism was not accepted in her country.
The applicant stated that she had tried to move to other places to live by herself but eventually she got caught and sent back home. She stated that that man exhausted all possible means to locate and capture her.
The applicant expressed a fear that she would be captured by her family and forced to marry that man. She would be imprisoned again by that man until she was willing to give birth to a baby for him. She stated that she would be hunted by that man and imprisoned. With regard to whether the authorities could, or would, protect her, she stated that lesbianism was not tolerated in Malaysia and that was why the authorities would do nothing to help her. She tried relocating before and failed. If she ever tried relocating again, the outcome would be no different.
On 13 October 2017, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate was not satisfied that there was a real chance the applicant would be persecuted for one of the reasons mentioned in s 5J(1)(a) of the Act. Nor was the delegate satisfied that the applicant’s claims gave rise to a real risk that she would be subjected to any form of significant harm.
The applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. I have had regard to the applicant’s evidence at the hearing, although it is not necessary to set this out in full. I have referred to relevant aspects of her evidence in my reasons, below.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I have carefully considered all of the applicant’s claims and evidence. For the following reasons, I have concluded that the matter should be remitted for reconsideration.
At hearing, the applicant gave a generally credible and convincing account of her realisation and experience of her sexual orientation and gender identity. For instance, she described how, when she was in junior high school, she started wearing men’s attire and realised she was not into boys and was paying more attention to females. She said that there was a boy who was trying to pursue her but she did not like it. She said she realised she had more interest in a particular girl. She described her experience of being ostracised by other students at her school, stating that her female classmates started to avoid getting in contact and thought she was different. She described having her first relationship with a woman in her home town of [Town 1] when she was [age]. She provided a detailed account of the circumstances of this relationship, indicating that it lasted for about 6 years. She described having to exercise discretion, in particular in front of family, saying that they tried to pretend that they were best friends. The applicant indicated that her mother was always very supportive and that she told her mother about the relationship. However, she said that her father was a very traditional person and would not accept homosexuals.
The applicant gave evidence to the effect that she worked in Kuala Lumpur from June to October 2013 and then from November 2013 until January 2016. She worked initially at [Business 1] and then at [Business 2]. She indicated that she lived in Kuala Lumpur during these periods, renting a room in a share house. When asked about her experience in Kuala Lumpur, the applicant indicated that she concentrated on her job and just worked. The applicant described experiencing discrimination in Kuala Lumpur, particularly if she was holding her friend’s hand. She said that people would mock and tease her, saying that a girl should be a girl. She indicated that the discrimination related to the way she looked because she already had short hair and wore men’s attire. The applicant said it was already difficult to get a place to live; if you were a same sex couple it would be even harder. She said she had to get a friend’s help to find a place to live. When asked about whether she had a partner while living in Kuala Lumpur, the applicant replied that it was not up to the extent of having a partner, more like a very close friend. With regard to why she did not have a relationship while living in Kuala Lumpur, the applicant said that it was very difficult to get a girlfriend there. If you held hands with a same-sex girl, you would be discriminated against. If they found two girls holding hands together, they could report you to the police.
The applicant also described being in a relationship in Australia with a [Country 1] woman whom she named. Again, she provided a detailed and convincing description of her relationship. She indicated that she had known this person for about a year and that they had been living together for 6 months. The applicant indicated that she had not had a relationship in Australia prior to this. She said she just did not meet the right person. She had been working at the same place since 2016 so she hardly went out and met new people.
With regard to her identity, the applicant said that she wished that people would not see her as a female. She indicated that she did not identify as a transgender male. She said she was happy people would not see her as a female and she only wore men’s clothing now. She said she was happy she could be more like a man to protect her partner. She did not want to do actions that were feminine.
At the Tribunal hearing, the applicant provided a ‘Declaration of Employment’ from her employer, [Company 1]. This document described the applicant as ‘[applicant name] ([Mr A])’. When asked at the hearing about why the letter referred to her as ‘[Mr A]’, the applicant stated that this was her English name and that she had chosen the name. She said that she thought the male version of [Mr A] suited her look and her characteristic.
Following the hearing, the applicant provided a statement from her partner, who described the evolution of her relationship with the applicant. She also produced a statement from [Ms B] who described knowing the applicant as a work colleague and friend. [Ms B] indicated that she had socialised with the applicant and her girlfriend, going out for dinners and attending the wedding of a mutual friend.
I have carefully considered the applicant’s evidence. She has provided a detailed account of her experience of her sexuality and her gender identity. I found her evidence in this regard to be generally credible and convincing. The statements from her partner and work colleague provide further support for her claims. I accept that the applicant is a lesbian of Chinese ethnicity from Malaysia. I accept that she prefers to wear men’s clothes and that, in this sense, she presents with a masculine appearance. I accept that, while she does not identify as a transgender male, she does not wish to be seen as female. I accept that she had a relationship with a woman in Malaysia for a number of years and that she exercised a level of discretion, hiding the relationship from her father in particular. Such discretion is consistent with independent country information, as discussed further below. While the evidence indicates that the applicant did not have a partner while living in Kuala Lumpur, the applicant’s description of the difficulties of having a same-sex relationship are also consistent with independent information, discussed below, which indicates that many members of the LGBTI community hide their identity to avoid harassment. I accept that the applicant is in a same-sex relationship with a woman in Australia and that she is open about her sexuality and her relationship, for instance with her work colleagues. I accept that she wishes to be able to continue to behave in this way. I accept that she is open about her gender identity in Australia and that this is reflected in her being known by the name ‘[Mr A]’, as indicated in the letter from [Company 1].
With regard to her experience in Malaysia, I accept that the applicant faced disapproval at school in relation to her sexuality and appearance. I accept that she experienced harassment and mocking during her time in Kuala Lumpur, in particular due to her appearance. I am conscious that the applicant was able to obtain employment and accommodation in Kuala Lumpur, and that the harm she experienced may not amount to serious or significant harm. However, I accept also that she was discreet about the relationship she had in [Town 1] and that she was not in fact in a relationship during her time in Kuala Lumpur, meaning that her sexuality may not have been readily apparent to people there.
I accept the applicant’s evidence that she received some support from her mother but that her father was strongly disapproving of her appearance and sexuality. As discussed below, independent country information refers to familial ostracism and indicates that reports of violence by family members towards LGBTI individuals are common. I do have some difficulty accepting the applicant’s evidence of having been locked up for 2 months from around January 2016 to March 2016. While I have considered the applicant’s explanations about these matters, I have some doubt about the applicant’s evidence regarding how it was that she was able to go to Kuala Lumpur with her mother to apply for an Australian visa in around February 2016 and why, having done this, she would then have returned to [Town 1] where she had been locked up. However, while the applicant may have sought to embellish aspects of her claims in order to strengthen her claim for protection, I do not consider that this undermines the overall credibility of her claims. Her evidence about her experience was otherwise detailed and convincing.
In assessing whether the applicant would face a real chance of persecution if she were to return to Malaysia, I have had regard to independent country information. This includes the 2021 DFAT report on Malaysia, which relevantly includes information to the following effect:
·     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. In addition to provisions of the Penal Code, numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression.
·     The former Barisian Nasional (BN) government 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 LGBTI individuals … prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals... Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources reported that LGBTI issues remained sensitive. Notwithstanding its general reformist nature, the previous Pakatan Harapan (PH) administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The Perikatan Nasional (PN) coalition was even less well-disposed towards LGBTI activities and individuals…
·     Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government…
·     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 20 men. The National Department of Islamic Development (JAKIM) subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the police. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.
·     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.
·     There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common… 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.
·     According to DFAT, the level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah.
·     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.[1]
[1] DFAT, Country Information Report Malaysia (29 June 2021) at pp.45-49

I note also that DFAT reported in relation to transgender people that in-country sources report that their increased visibility makes transgender individuals particularly vulnerable to raids by religious authorities and subsequent placement in re-education centres.[2] Human Rights Watch has reported that a number of Malaysian states, including Perak, have issued fatwas which forbid pengkid (which roughly translates as “tomboy” or “masculine woman”). The fatwas declare that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam.[3]
[2] Ibid. at p.48
[3] Human Rights Watch, I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia, (10 August 2022)
In its report on human rights practices for 2022, the US Department of State noted that the law did not prohibit discrimination based on sexual orientation or gender identity. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality. The State Department also stated that observers reported that violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[4]
[4] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023)
In a February 2021 report entitled “I Don’t Want to Change Myself”: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia, Human Rights Watch observed, ‘The Malaysian government relies on the force of the law to prohibit expression and conduct that fall outside of a heterosexual, cisgender norm.’ It stated that, in addition to institutionalised discrimination, LGBT people also faced discrimination and violence from members of the public. Perpetrators were rarely held accountable. Human Rights Watch referred to some LGBT people being coerced into heterosexual marriages by their families based on the idea that marriage can prevent or cure same-sex attraction. It expressed the view that the state’s insistence that being LGBT is unacceptable, its funding of conversion practices, and its failure to respond to harmful conversion practices by non-state actors, all harmed LGBT people.[5] In its World Report for 2024, Human Rights Watch reported that state-sponsored discrimination against LGBT people remains pervasive. It referred to statements from prime minister Anwar rejecting the idea that LGBT Malaysians would be recognised and protected under his government. Reference was also made to a ban issued by the Ministry of Home Affairs on all Swatch products with LGBT, queer and plus (LGBTQ+) branding.[6]
[5] Human Rights Watch, I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia, (10 August 2022)
[6] Human Rights Watch, World Report 2024: Malaysia (2024)
An August 2023 Reuters report referred to the Anwar government as follows: ‘His government has banned books for "promoting the LGBT lifestyle", detained demonstrators expressing support for queer rights and confiscated Pride-themed watches made by Swiss watchmaker Swatch.’ According to the report, queer Malaysians and rights groups told Reuters that LGBTQ communities faced increasing scrutiny and discrimination under Prime Minister Anwar Ibrahim's government. Reference was made to ‘online harassment and death threats against queer Malaysians’ being rampant on social media. It was reported that the group Justice for Sisters had stated that the LGBTQ community was increasingly adopting self-censorship to stay under the radar.[7]
[7] R. Latiff & A. Ananthalakshmi, ‘LGBTQ fears grow in Malaysia as Islamists shatter reform hopes’, Reuters (21 August 2023), available at >
The evidence indicates that the applicant is a non-Muslim. In these circumstances, she is not subject to Syariah law. However, the independent information points to widespread official and societal disapproval of LGBTI identities and behaviours, and to politicians from across the political spectrum adopting anti-LGBT positions. In its 2021 report, DFAT observed that Malaysia was becoming less tolerant for LGBTI people. It indicated that many members of the LGBTI community hide their identity. It assessed that, in general, LGBTI individuals faced a moderate risk of societal discrimination which, in addition to prosecution, included exclusion from public spaces and employment opportunities, and familial or societal violence. It reported that the risks were higher for transgender people. The US Department of State refers to discrimination in a number of areas and indicates that violence against LGBTQI+ persons is common, and sometimes perpetrated and condoned by police. Human Rights Watch has pointed to institutionalised discrimination, as well as discrimination and violence from members of the public. It referred to a lack of accountability. There is some indication of increasing scrutiny and discrimination under the Anwar government and of increasing self-censorship. The independent information points to a situation in which same sex activity is criminalised, there is an absence of protection against discrimination and there is anti-LGBTI rhetoric from the government. It points to an environment in which there is discrimination and violence is common, and to a lack of accountability.
Having regard to this information, I am satisfied that there is a real chance that the applicant will suffer serious harm, in the form for instance of significant physical harassment or ill-treatment, for reason of her sexuality. In making this finding, I have had regard to the fact that the applicant has been able to live and work in Kuala Lumpur in the past. However, I have found that the applicant was not in a relationship at that time. I accept that she now lives openly in a same-sex relationship and that she would wish to do so in the future. For reasons outlined below, I consider that she cannot be expected to modify her behaviour in this regard. I have had regard to the fact that she is not Muslim, that there is information indicating that society in Kuala Lumpur may be more permissive and that circumstances may be better for LGBTI individuals of high socio-economic status. With regard to socio-economic status, I note that the applicant has worked as [an Occupation 1] in the past and would be returning to Malaysia after a long absence. I have accepted that her father is not accepting of her sexuality and gender identity, and consider that she cannot expect to have family support. Socio-economic status is not a factor that weighs in her favour. I have accepted that, in addition to her sexuality, the applicant does not wish to be identified as feminine and prefers to dress in male clothing. This is a factor that increases her visibility and exacerbates the risk of harm. I find that, even if the applicant were to return to Kuala Lumpur where she has lived previously, she would face a real chance of persecution for reason of her gender identity.
Having regard to s 5L of the Act, I am satisfied that lesbians in Malaysia constitute a particular social group. Their sexuality is a characteristic shared by each member of the group, including the applicant. Having regard to the independent country information, I am satisfied that this characteristic distinguishes the group from society at large such that s 5L(c)(iii) apples. I would note also that sexuality is a characteristic so fundamental to identity that members of the group should not be forced to renounce this characteristic. In these circumstances, s 5L(c)(ii) would also be applicable. The shared characteristic is not a fear of persecution. I am satisfied that the applicant is a member of the particular social group constituted by lesbians in Malaysia.
Having regard to the independent country information, I am satisfied that the applicant would, for reason of her membership of the particular social group constituted by lesbians in Malaysia, face a real chance of suffering physical and other mistreatment amounting to serious harm. I am satisfied that membership of the relevant particular social group would be the essential and significant reason for the persecution, and that the persecution involves systematic and discriminatory conduct. Her gender identity is a factor that further exacerbates the risk in this regard.
I am satisfied that the applicant would face a similar situation in any part of Malaysia. Indeed, if she were to attempt to live in some part of Malaysia other than Kuala Lumpur or Perak, she would be likely to attract attention and would be without family or other support. I find that the real chance relates to all areas of Malaysia. Having regard to the independent information pointing to lack of accountability and to police involvement in some violence against LGBTQI+ persons, I find that effective protection measures are not available.
Arguably the risk would be less if the applicant were to take steps to modify her behaviour such as not being open about relationships or gender identity. However, I accept that the applicant’s behaviour in Australia, including her openness about her same-sex relationship and her gender identity, are a genuine reflection of her sexuality and gender identity. Requiring her to modify her behaviour to conceal her sexuality or gender identity would conflict with characteristics that are fundamental to the applicant’s identity and involve concealment of her true sexual orientation. In these circumstances, s 5J(3) is not applicable.
In making my findings, I have had regard to the applicant’s conduct in Australia. While she has been more open about her sexuality and gender identity in Australia, I find that this conduct reflects her genuine sexuality and identity, and has not been engaged in for the purpose of strengthening her claim to be a refugee.
In all the circumstances, I am satisfied that the applicant has a well-founded fear of persecution for reason of her membership of the particular social group constituted by lesbians in Malaysia. I am satisfied that she meets the definition of ‘refugee’ in s 5H(1)(a).
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
On the available evidence, there is no suggestion that the applicant would have a right to enter and reside in any third country such that s 36(3) of the Act would apply.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Don Smyth
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.
…

[2024] AATA 2126

22 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction