1816765 (Refugee)

1816765 (Refugee) [2023] AATA 4181 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kayhan Oncu
CASE NUMBER:  1816765
COUNTRY OF REFERENCE:                   Turkiye
MEMBER:L. Symons
DATE:8 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 September 2023 at 4:32pm
CATCHWORDS
REFUGEE – Protection visa – Turkey –religion – conservative Sunni Muslim – homosexual – sexual identity – fears harm from family members – significant inconsistencies and contradictions in his evidence – voluntary return to Turkiye – is fearful of being a victim of an honour killing – membership of a particular social group – homosexual men in Turkiye –Tribunal does not accept that the applicant is of adverse interest to his family members, the community or the Turkish authorities – delay in applying for protection in Australia –credibility concerns – fabricated his claim in order to be granted a protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 411, 499
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 dependants.
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 Home Affairs on 1 June 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Turkiye, first arrived in Australia on [date] February 2015 as the holder of subclass 600 Visitor visa that was valid until [date] May 2015. On 15 May 2015, he made an onshore application for a second subclass 600 Visitor visa and was granted that visa on 5 August 2015. That visa is valid until 26 November 2015. He made a further onshore application for a third subclass 600 Visitor visa and was granted that visa on 7 December 2015. This visa was a multiple entry visa that was valid until 7 June 2016.
The applicant departed Australia on [date] January 2016 and returned on [date] February 2016. He applied to the Department of Home Affairs (the Department) for a Protection visa on 24 May 2016. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 13 June 2018, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 16 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant was represented in relation to the review by his lawyer, Mr Kayhan Oncu, who attended the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He is a homosexual who was hiding his sexual identity from his family, relatives, community and immediate environment in Turkiye. His family found out about his sexual identity. Since then, he has been receiving death threats from family members in Turkiye including his brothers and some of his relatives.
·He was threatened, physically abused and discriminated against. His basic human rights were violated because of his sexual identity as a homosexual. His brothers “bashed” him, forced him to marry someone of their choosing and threatened to kill him.
·Because of the homophobic nature of society and the corrupt legal system and security forces, he did not have the courage to seek help from the Police or legal authorities to protect him. As a homosexual he was concerned that he may have faced further abuse from them.
·He did not move or attempt to move to another part of Turkiye because wherever you go in Turkiye you have to register with the local governorship. It would not be difficult for his family to find his whereabouts wherever he moved to in Turkiye. It is difficult to lead an ordinary life as a homosexual in Turkiye where he will face discrimination and mistreatment wherever he goes.
·If he returns to Turkiye, he is fearful that he will be seriously harmed by family members who accuse him of bringing shame to the family name and believe that he should be punished for being a sinful man. He would also be severely discriminated against and treated unfairly in the community. He did not have a fair chance to live his life as a homosexual man. He will be at high risk of serious harm. He may be killed by his brothers. They may cause serious harm to his physical and psychological well being after they found out he is homosexual. (sic)
·He does not believe that the Turkish authorities would be willing or able to protect the rights of a homosexual. There were homosexuals killed by family members and/or abused and violated by fundamentalist religious community members.
The applicant provided to the Department with copies of his Turkish Identification Card, Turkish Birth Certificate and the biodata page of his Turkish passport issued on [date] 2013 and valid until [date] 2023.
The applicant attended an interview with the Department on 11 January 2018. At the conclusion of the interview, he provided the delegate with a detailed Statement of Claims dated 11 January 2018. In his Statement of Claims, he made the following claims:
·He is seeking protection in Australia because of his sexual preferences. He is scared of returning to Turkiye because he fears that he will be seriously harmed by family members and relatives.
·He is the youngest child of a conservative Sunni Muslim Turkish family with ten children. He has two older brothers and seven sisters. Three of his sisters have lived in Australia for many years. The rest of his siblings live in Turkiye. His parents wanted him and his siblings to attend religious courses during the school holidays. He attended these courses until he completed secondary school.
·He became aware of his sexual identity when he was [age] to [age] years old. He was warned by his father and brothers at that age because he was mixing with his sisters and other girls in the neighbourhood. He did not enjoy spending time with his male friends. He secretly wore his sister’s clothes and underwear and used their make up when he was alone in the room. In later years, he turned into an introvert due to pressure from his family members and limited interaction with people around him. He had mixed feelings as he enjoyed what he was doing but at the same time felt shame and guilt as if he had committed an offence. He was scared to be noticed by his family members.
·When he was in Secondary school, he experienced bullying and was sick about jokes about his feminine attitude. Even though he enjoyed being with girls he was scared to be with them so as to prevent bullying and verbal insults by boys. He was isolated in school. He had one close male friend who was like him. He also received similar treatment from other boys. They talked to each other but were both scared to speak about their feelings.
·After Secondary school he wanted to discontinue his studies because of the bullying at school and told his parents that he wanted to work rather than continue studying. His father had a [business] and took him to work with him. His brothers also worked for his father. His father wanted him to be like his brothers and behave like a man but it was difficult for him to act like a macho male. He tried to work alone in the office rather than interact with [others at work]. His father passed away when he was [age] years old.
·His brothers, who were in charge of the family business, asked him why he did not have a girlfriend. He told them that it was too early for him to have a girlfriend. One day his eldest brother, [Mr A], told him that no girl would be interested in him unless he acted like a real man. After the age of [age], he sometimes went out, stayed alone and returned home late at night. He told his brothers that he had spent time with his girlfriend. Instead, he was at a bar drinking alcohol. He managed to avoid their pressure until he went to military service.
·He was afraid of doing compulsory military service because he had heard about homosexuals in the Turkish army. He heard about homosexuals being identified and given pink discharge papers. He undertook military service for eighteen months and was careful not to be identified as homosexual. He was mostly alone. If he had to spend time with others, he acted like other soldiers to hide his feelings. He showed them a photograph of a woman and told them that that was his fiancée.
·After completing military service, he returned to his family home and re-joined his family business. His eldest brother, [Mr A], was in charge of the business at the time and asked him when he was going to get married. His second brother, [Mr B], had his own [business] and he had limited contact with him. He avoided him because he was a Muslim fanatic, had no tolerance and he was scared of him. He had a history of physical violence from his brother [Mr B] when he was a teenager, following his father’s death.
·After the age of [age] years, his brothers insisted that he had to get married and have children. He gave them various excuses including that he had a girlfriend. He sometimes told them that he had broken up with his girlfriend when they asked him to introduce her to them. In the years when he was left alone at the office, he initially visited homosexual websites on the Internet. He was excited when he read about other people like him. Until then he did not know that there were so many people like him in Turkiye.
·In around 2005, he met his first boyfriend in a bar at [Neighbourhood 1]. He was happy to be with someone who felt like him. After several weeks they started talking about themselves and their feelings. He was afraid of being seen by someone he knew. This friend invited him to his house in [Neighbourhood 1] but he was afraid to go there. They met once or twice a month in bars or cafes. He was scared to have regular contact because he feared being seen and harmed by his brothers. They broke up in 2008 because his friend was not happy about his refusal to have a close relationship. They did not see each other again for a year until the end of 2009. They broke up again within six months in 2010 when he saw him dating another friend.
·In 2013, he was unable to say no when his brothers forced him to get engaged. Even though he met his fiancée often he was unable to have feelings for her. He planned to end the engagement but had to find a reason. He delayed the marriage for various reasons. He realised he had to do something to get away from this forced marriage. He wanted to leave Turkiye and visit his sisters in Australia. He applied for a Visitor visa for three months, was granted the visa and arrived in Australia on [date] February 2015. He extended his visa twice to delay his return to Turkiye.
·One day his sister [Ms C] found him crying in his room, asked him why and he kept silent. She later asked him if he was afraid to get married and he answered yes. She later asked him if he was homosexual, he did not respond and cried. She was shocked and told him she would not tell anyone what they discussed. She told him she would help him to get out of the situation and advised him to return to Turkiye and tell his fiancée that he no longer wanted to marry her. He returned to Turkiye on [date] January 2016. He told his fiancée that he no longer wanted to marry her. When his brother [Mr B] found out that he had ended his engagement with his fiancée, he started screaming at him. His sister [Ms C] told him not to force him (to get married). He started threatening him and told him that he was certain there was something wrong with him.
·He stayed in Turkiye for one month and returned to Australia on [date] February 2016 as he still had a valid visa. He was relaxed in Australia. He was sick of hiding his identity when he saw homosexuals enjoying their freedoms in Australia. He was depressed and had problems sleeping and concentrating. His brother [Mr B] told his sister [Ms C] to send him back to Turkiye where he would get him treated. His sister encouraged him to seek professional help and he started seeing a Psychologist. His Psychologist told him that he could seek protection in Australia and he applied for a Protection visa. He lodged his application for a Protection visa a few days before his (Visitor) visa expired.
·He heard that his brothers were saying that he had shamed their family and they would clean the stain on their family honour. He is afraid that his brothers will kill him if he returns to Turkiye. If he returns to Turkiye, he will face discrimination and punishment from his relatives and society. He is afraid of being murdered for being a homosexual. He experienced harm in every aspect of life. He cannot hide his feelings as he has got used to freedom in Australia.
·He is afraid to return to Turkiye as he is scared of being seriously harmed or even killed by his brother [Mr B] or close relatives. The Turkish authorities will not protect him. He seeks protection from the Australian government by granting him a Protection visa.
The applicant subsequently lodged with the Department a Psychological Report dated 16 January 2018 from [Ms D], Psychologist. The delegate wrote to the applicant, pursuant to s.56 of the Act, putting adverse information to him in relation to inconsistencies in his evidence about when he informed his sister [Ms C] of his sexual orientation and how his brother’s in Turkiye became aware of this. He responded by letter dated 30 January 2018.
On 1 June 2018, the delegate refused the applicant’s application for a Protection visa as she found that he is not a person in respect of whom Australia has protection obligations.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 1 June 2018. On 15 May 2023, he filed with the Tribunal his Statutory Declaration dated 14 May 2023 in which he made the following new claims:
·After making an application for review to the Tribunal, he decided to go out, socialise and make new friends. On 31 December 2018, his employer invited him and his co-workers to his house for a New Year’s Eve celebration. He attended and met a man named [Mr E] with whom he later became friends. Over time their friendship developed into a romantic relationship. On 31 December 2019, he proposed marriage to [Mr E] and he accepted. In early January 2020, he and [Mr E] made arrangements to get married on [date] May 2020. Unfortunately, due to the Covid-19 pandemic they had to postpone their wedding. He and [Mr E] separated before the pandemic ended.
·In early 2021, whilst they were having breakfast, [Mr E] asked him what he thought of (Recep) Tayyip Erdogan and he answered him. [Mr E] then said “thank you”, showed him his telephone, told him he had recorded him on video and would hand it over to the Turkish authorities. He laughed and responded that it was fine as long as he did not post it on [social media]. [Mr E] told him that he was not joking, had read his messages with [Mr F] and knew that he was cheating on him. He told him that they were over, his video would get to the Turkish authorities and he then left. He later went through his telephone and noticed that [Mr E] had deleted all their photographs and messages. He is concerned that [Mr E] has reported him to the Turkish authorities and he will be in a lot of trouble, detained and imprisoned on his return to Turkiye.
·He did not have the strength to commence another relationship after that. In mid-2022, he invited a customer from his workplace named [Mr G] to his home for dinner and drinks. After dinner and drinks, he held [Mr G]’s hand and told him about his feelings. [Mr G] became violent and assaulted him. He told [Mr G] that he was going to call the Police. [Mr G] told him that if he called the Police he would say that he sexually harassed him and he would be deported.
·After this incident, he did not go to work for two weeks. He was concerned that [Mr G] may have reported him to the Police. After this incident and until recently, he refrained from having close relationships with anyone. About two weeks ago, he met someone called [name] and they have met up a few times. He hopes that this will develop into a serious relationship. He is fearful that if [Mr F] (sic) has reported him to the Turkish authorities, there is a real chance that he will be arrested, detained and tortured if he returns to Turkiye.

Following the hearing, the Tribunal received post hearing submissions dated 5 June 2023 and country information from the applicant’s lawyer. On 11 August 2023, the Tribunal received supporting documents including a letter dated 10 August 2023 from [Mr H], a wedding invitation, a letter dated 17 January 2020 from [Mr I] and a letter dated 28 January 2020 from [Mr J].
Receiving Country
The applicant claims to be a citizen of Turkiye and has provided a copy of his Turkish passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Turkiye. The Tribunal finds that Turkiye is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country than his country of nationality.
Assessment of Claims
The applicant gave evidence that his application for a Protection visa was prepared by someone named [Mr k] who he was referred to. This person had an office in [Suburb 1] and he paid him almost $2,000.00. He did not know his title, he was not a lawyer but was dealing with these sorts of situations. His instructions to him were true and correct and he believes his application for a Protection visa is accurate and complete.
The applicant stated that the Statement of Claims he provided the delegate at the end of his interview with the Department on 11 January 2018 was also prepared by [Mr k] based on his instructions which were true and correct. He is satisfied that the Statement of Claims is accurate and complete. His Statutory Declaration dated 14 May 2023 was prepared by his (current) lawyer on his instructions which were true and correct. He was satisfied that his Statutory Declaration dated 14 May 2023 is accurate and complete.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Turkiye, why he left Turkiye, his return trip to Turkiye and why he now fears returning to Turkiye. The Tribunal found aspects of his evidence to be vague, lacking in detail and unconvincing. There were significant inconsistencies and contradictions in his evidence. He made new claims during the process. His conduct was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:
First, in his Statement of Claims dated 11 January 2018, the applicant claimed that he is homosexual and first became aware of his sexual orientation when he was [age] or [age] years old. In his application for a Protection visa, he claimed that he hid his sexual orientation from his family, relatives, community and immediate environment in Turkiye. In his Statement of Claims dated 11 January 2018, he claimed that he was bullied at Secondary school because of his “feminine attitude”. He was isolated at school. He had one close male friend who was like him. They talked to each other but were both scared to speak about their feelings. He met his first (male) friend in a bar in 2005. The Tribunal discussed these claims with him.
During the hearing, the applicant gave evidence that he first realised that he was attracted to boys when he was around [age] or [age] years old. When asked how he came to this realisation, he responded that he enjoyed the company of his sisters. When he was in Junior High School, he shared his feelings with a boy. When asked what he told this boy, his response was evasive and non- responsive. When asked what made him realise that he preferred boys, he responded that he was very close to his sisters and could not establish friendships with boys. He had his first boyfriend in 2005. When asked how old he was when he had his first boyfriend, he responded [age] years.
The evidence before the Tribunal is that the applicant was born on [age]. He is the youngest child in a family of ten children and has seven older sisters and two older brothers. The Tribunal does not consider it to be unusual that, as the youngest of ten children, he would be close to his older sisters and enjoy their company. His evidence that he could not establish friendships with boys is not consistent with his claim that he had a close male friend when he was at Secondary school. His evidence that he shared his feelings with this boy is not consistent with his claim that they were scared to speak about their feelings. As he was born in [year], he would have turned [age] years in 2005. This is not consistent with his evidence that he had his first boyfriend in 2005 at the age of [age] years.
These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
Second, in his Statement of Claims dated 11 January 2018, the applicant claimed that after Secondary school he wanted to discontinue his studies because of the bullying at school and told his parents that he wanted to work rather than continue studying. His father had a [business] and he took him to work with him. His brothers also worked for his father. His father wanted him to be like his brothers and behave like a man but it was difficult for him to act like a macho male. He tried to work alone in the office rather than interact with [others]. In the years when he was left alone at the office, he initially visited homosexual websites on the Internet. His father passed away when he was [age] years old.
In his application for a Protection visa, the applicant provided details of his education and his employment. He stated that he commenced High School in September 1991 and subsequently withdrew without completing High School. In March 1993, he commenced work [at] a [workplace] and stopped working there in July 1993. In January 1994, he commenced work [in] a [workplace] and left that job in February 1994. He undertook military service from November 1995 until May 1997. He commenced working for his brother [Mr A] as a [occupation] in July 1997. (He turned [age] years in 1997).
During the hearing, the Tribunal discussed his employment with the applicant. He gave evidence that after he left school he started working in the family business straight away. He continued working in the family business until he left Turkiye to come to Australia (in 2015). The Tribunal asked him whether he had done any other work in Turkiye and he responded no.
The applicant’s own evidence is contradictory and inconsistent with his claims. His claims that, after completing Secondary school, he started working in the family business with his father and two brothers, his father wanted him to be like his brothers and behave like a man and he looked at homosexual sites on the internet whilst at work in the family business is not consistent with his application for a Protection visa in which that he stated that he completed Secondary school and commenced High school and did not start working in the family business until 1997 (at the age of [age] years). His evidence is that his father passed away when he was [age] years old.
When the Tribunal raised this as an issue with him, the applicant responded that he worked at a [workplace] for a short time, did not see it as a job and forgot to mention it. The Tribunal accepts that he may have forgotten to mention working at a [workplace] because he only worked there for a short time. However, he did not explain why his oral evidence was not consistent with his written evidence or why he stated that he was satisfied that his application for a Protection visa was accurate if, in fact, it was not.
Further, the Tribunal finds it implausible that the applicant would have been looking at homosexual sites on the internet at his family business particularly when his father and two brothers also worked there and the risk of them finding out would have been high.
These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
Third, the applicant’s evidence in relation to his claims of being forced to get married or, alternatively, forced to get engaged, is inconsistent.
In his application for a Protection visa, the applicant claimed that his brothers “bashed” him, forced him to marry someone of their choosing and threatened to kill him. His evidence to the Tribunal was that his application for a Protection visa was prepared on his instructions which were true and correct and he was satisfied that his visa application was accurate.
In his Statement of Claims dated 11 January 2018, the applicant made significantly different claims. He claimed that, after completing military service, he returned to his family home and re-joined his family business. His eldest brother, [Mr A], was in charge of the business at the time and asked him when he was going to get married. After the age of [age] years, his brothers insisted that he had to get married and have children. He gave them various excuses including that he had a girlfriend. In 2013, he was unable to say no when his brothers forced him to get engaged. Even though he met his fiancée often he was unable to have feelings for her. He planned to end the engagement but had to find a reason. He applied for a Visitor visa for three months, was granted the visa and arrived in Australia on [date] February 2015. He extended his visa twice to delay his return to Turkiye.
In his Statement of Claims dated 11 January 2018, the applicant claimed that one day his sister [Ms C] found him crying in his room, asked him why and he did not respond. She asked him if he was afraid to get married and he answered yes. She later asked him if he was homosexual, he did not respond and cried. She told him she would help him to get out of the situation and advised him to return to Turkiye and tell his fiancée that he no longer wanted to marry her. He returned to Turkiye on [date] January 2016 and told his fiancée that he no longer wanted to marry her. When his brother [Mr B] found out that he had ended his engagement to his fiancée, he started screaming at him. His sister [Ms C] told his brother not to force him to get married. His brother threatened him and told him there was something wrong with him. He stayed in Turkiye for one month and returned to Australia on [date] February 2016 as he still had a valid visa.
During the hearing, the applicant gave evidence that after he completed military service his family started putting pressure on him to get married. His siblings and his father, until he passed away, pressured him to get married. His father passed away when he was [age] years old. When asked whether his father was putting pressure on him to get married when he was [age] years old, he responded that it started after he completed military service. When the Tribunal pointed out that his father had passed away before he completed military service, he agreed. He offered no explanation for his earlier contradictory evidence.
During the hearing, the applicant stated that his siblings arranged for him to get married to the daughter of a close family friend. His heart was not in it but he felt pressured to accept the arrangement. He did not have the strength to oppose his family’s wishes. They went out together for 3 months. When asked how his fiancée felt about him coming to Australia (in 2015) without him, he responded that he told her his mother always dreamed about coming to Australia to visit her daughters. He then accompanied his mother to visit his sisters in Australia. Soon after he returned to Turkiye, he told his fiancée that he wanted to call off their engagement. She asked him if he had a girlfriend in Australia and he told her that he just did not want to get married.
The Tribunal asked the applicant how his family reacted to him breaking off his engagement. He responded that they were upset and asked him why. He gave them the same answer he used to give them before and used the same approach. They started saying things to him in the end and he could not take it anymore. His sister [was] advocating on behalf of his fiancée. His brother [Mr B] denigrated him and asked questions like ‘aren’t you a man? Why aren’t you giving a proper reason? Don’t you think about other people and how they think about you?’ When they denigrated him and spoke vulgarly he could not cope with the situation and decided to return to Australia.
During the hearing, the applicant made no mention of being married forcibly or otherwise. He also made no mention of being “bashed” by his brothers or them threatening to kill him or any of his brothers being violent towards him. The Tribunal raised this as an issue with him and its concerns in relation to his credibility. He responded that what he told the Tribunal is how things happened. He told his fiancée that he was not going ahead with the marriage and then came here. He was trying to run away from the situation and get away. When he spoke to one of his brothers he used violence against him. He did not have the courage to talk to his other brother. He spoke to him on the telephone and then left.
The applicant’s response did not address the inconsistencies in his claims including his claim that he was forcibly married. His response that when he spoke to one of his brothers he used violence against him is not consistent with his earlier evidence in relation to how his family reacted when he told them that he had called off his engagement.
Further, the applicant’s evidence that he told his fiancée that he was coming to Australia with his mother (in 2015) because she had always dreamed about coming to Australia to visit her daughters is not consistent with the history he provided to Ms [Ms D], Psychologist, as referred to in her Psychological Report dated 16 January 2018 filed with the Department. In the history he provided her, he stated that his mother passed away in 2004. If his fiancée was the daughter of a close family friend as claimed she would have been aware of this.
These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.
Fourth, the applicant’s evidence in relation to when and how his family members found out that he is homosexual and how they reacted is inconsistent.
In his application for a Protection visa, the applicant claimed that he is a homosexual who was hiding his sexual identity from his family, relatives, community and immediate environment in Turkiye. His family found out about his sexual identity. Since then, he has been receiving death threats from family members in Turkiye including his brothers and some of his relatives. In response to question 91 in his application for a Protection visa, in relation to whether he experienced harm in Turkiye, he responded that he was threatened, physically abused and discriminated against. His basic human rights were violated because of his sexual identity as a homosexual. His brothers “bashed” him, forced him to marry someone of their choosing and threatened to kill him.
In response to question 92 in his application for a Protection visa, in relation to whether he sought help in Turkiye after he was harmed, the applicant responded that because of the homophobic nature of society and the corrupt legal system and security forces, he did not have the courage to seek help from the Police or legal authorities to protect him. As a homosexual, he was concerned that he may have faced further abuse from them.
In his Statement of Claims dated 11 January 2018, the applicant made no mention of informing anyone in Turkiye that he is homosexual prior to coming to Australia. He stated that after he came to Australia, on [date] February 2015, his sister [Ms C] found him crying in his room, asked him why and he did not respond. She asked him if he was afraid to get married and he answered yes. She later asked him if he was homosexual, he did not respond and cried. She was shocked and told him she would not tell anyone what they discussed. She told him she would help him to get out of the situation and advised him to return to Turkiye and tell his fiancée that he no longer wanted to marry her which he did
In his Statement of Claims dated 11 January 2018, the applicant made no mention of informing his brother or any other family member that he is homosexual when he returned to Turkiye to break off his engagement or after he came back to Australia. He also made no mention of his sister [Ms C] informing any family member that he is homosexual. However, he claimed that sometime after he returned to Australia, he heard that his brothers started saying he was a shame on their family and they will clean the stain on their family honour. He did not state whether this was because he had broken off his engagement or because he is homosexual.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 1 June 2018. It indicates that during his interview with the delegate he stated that after he informed his sister that he is homosexual, she told the rest of the family. His family was very angry. His brother said he should return to Turkiye so they could take him to a doctor. However, he knows his brother well and feels that he has other plans for him were he to return to Turkiye. His brother told their sister that he no longer has a brother and that he would kill him as he had brought shame to the family. His brother knows many people as he lives an Islamic life and actively participates in community meetings. He knows many people in the city including people in the government and Police. He is sure that his brothers are waiting for him in Turkiye. He was asked why his sister informed his brothers of his sexual orientation if his brothers were so conservative. He responded that he wanted his sister to disclose this as he could not live a lie any longer.
During the hearing, the applicant gave a different version of these events. He stated that, other than for his sister [Ms C], he did not tell any other family member that he is homosexual. When asked whether she told any other family member that he is homosexual, he responded that she initially told his family members that he was having health issues. After he filed his application for a Protection visa, she explained the situation to them and told them. When asked how his family reacted to this information, he responded that his brother [Mr B] was upset and told her he knew there was a problem. He knew there was something he was not telling him. He told her he needs to return to Turkiye and he could help him. He does not believe him.
The Tribunal raised as an issue with the applicant the inconsistencies in his claims and evidence in relation to when his family found out he is homosexual and how they reacted. He responded that he thought he should only answer questions from the Tribunal. The Tribunal reminded him that he was given many opportunities during the hearing to provide further evidence besides answering the Tribunal’s questions and the Tribunal checked with him whether he had told the Tribunal everything he wished to say.
The applicant responded that he received threats. His family is a traditional Islamic family. He did not think he needed to provide that information if he was not asked specifically about it. If he returns to Turkiye, they will make his life hell for him. The Tribunal raised as an issue his changing claims and its concerns in relation to his credibility and the veracity of his claims. He responded that he did not know. It could be that he is nervous and may say something which could be construed differently or misunderstood. He might have misunderstood.
The Tribunal accepts that the applicant may have been nervous during the hearing. However, this does not explain the significant inconsistencies in his written claims and evidence between his application for a Protection visa and his Statement of Claims dated 11 January 2018. These documents were prepared by his migration agent presumably in his office and based on his instructions which according to him were true and correct. His response does not address the issues raised with him or alleviate the Tribunal’s concerns.

Fifth, the applicant’s conduct is not consistent with his claims. He has filed with the Tribunal a copy of the Department’s Decision Record dated 1 June 2018. It indicates that he first arrived in Australia on [date] February 2015, departed Australia on[date] January 2016 and returned on[date] February 2016. His evidence to the Tribunal is that he returned to Turkiye during that period and lived in his family home in Istanbul. The Tribunal raised as issues with him his voluntary return to Turkiye and the length of his stay in Turkiye before returning to Australia. The Tribunal noted that his actions were not consistent with someone who claims to have been persecuted in Turkiye and feared being killed if he returned to Turkiye. The Tribunal noted that his conduct raised issues in relation to the credibility of his claims.
The applicant responded that, at the time he returned to Turkiye, he had not yet told anyone about his sexual orientation. He was still able to protect himself over there. They did not know about his sexual orientation. It was just another period for him. The time he spent in Turkiye was not different from when he previously lived in Turkiye. There was not much threat that was different from before.
The applicant’s response is inconsistent with his claims and his evidence and raises a number of issues. Firstly, in his application for a Protection visa, he claimed that after his family found out about his sexual identity he received death threats from his brothers and some of his other relatives in Turkiye, he was threatened, physically abused and discriminated against, his brothers “bashed” him and his basic human rights were violated. This is not consistent with his response that they did not know about his sexual orientation.
Secondly, in his Statement, the applicant claimed that when his brother [Mr B] found out that he had ended his relationship with his fiancée, he started screaming at him, threatening him and told him that he was certain there was something wrong with him. This is not consistent with his response that the time he spent in Turkiye was just another period for him. Thirdly, his evidence to the Tribunal was that he discussed his sexual orientation with his sister [Ms C] when he first arrived in Australia (on [date] February 2015). Therefore, at least one family member knew about his sexual orientation before he returned to Turkiye. This is not consistent with his response that he had not told anyone about his sexual orientation when he returned to Turkiye.
Fourthly, in his Statement of Claims dated 11 January 2018, the applicant claimed that since the age of [age] years[1], his brothers insisted that he had to get married and have children. He claimed that he had a history of physical violence from his brother [Mr B] and was afraid of him. He gave evidence to the Tribunal that his brothers and sisters arranged for him to marry the daughter of a close family friend. The Tribunal considers that he would therefore have been aware that he would have problems with his brothers, let alone his sister who lives in the family home in Turkiye, once he broke off his engagement. The Tribunal is of the view that this would have been a deterrent for him to return to Turkiye to break off his engagement in person and that he would have done so from Australia.
[1] The applicant turned [age] years in 2001.
Fifthly, the applicant’s evidence to the Tribunal is that he broke off his engagement soon after his return to Turkiye. He remained in Turkiye for a month before returning to Australia. He had a valid Australian visa during that time. The Tribunal considers that if he was being treated as badly as he claims he would have returned to Australia soon after breaking off his engagement instead of continuing to live in his family home in Turkiye for a month. The length of his stay in Turkiye is not consistent with his claims.
The applicant’s voluntary return to Turkiye, the length of his stay in Turkiye and the inconsistencies in his evidence raise issues in relation to his credibility and the veracity of his claims.
Sixth, the applicant’s earlier evidence to the Tribunal (differently constituted) in relation to his application for a subclass 600 Visitor visa is not consistent with his claims and evidence in relation to his application for a Protection visa. In his application for a Protection visa, he claimed that he is homosexual and was forced by his brothers and sisters to get engaged to a woman in Turkiye. She is the daughter of a close family friend and his siblings arranged the engagement. He subsequently broke off the engagement as he could not go through with the marriage.
However, in his application for a subclass 600 Visitor visa filed on 16 April 2014 he gave very different evidence. When this visa application was refused by the Department, his sister, [lodged] an application for review with the Tribunal. He and his sister gave evidence to the Tribunal (differently constituted) at a hearing on 8 October 2014. His evidence was given by telephone. He gave evidence that he was engaged to a woman in Turkiye and genuinely intended to pursue that relationship. His fiancée was not travelling with him and that was an incentive for him to return to her in Turkiye.
The applicant gave evidence, in his application for a Visitor visa, that he and his brother operated a [business] in Turkiye but the licences and [tools] were in his brother’s name. He provided the Tribunal (differently constituted) with records from the business including superannuation payments made on his behalf.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it may lead it to the conclusion that his brother, who runs the family business, supported his visit to Australia and he co-operated by providing him with business records that he could provide the Tribunal. The Tribunal noted that this may also lead it to the conclusion that he provided false information to the Tribunal in relation to his relationship with his fiancée so that he could get the Visitor visa or, alternatively, that he provided false information to the Department and the Tribunal so that he could get a Protection visa.
The applicant’s lawyer requested and was granted time to speak to the applicant in private and the hearing was adjourned for a short time to enable this to happen.
When the hearing resumed, the applicant responded that when he was planning to come to Australia he was definitely trying to “move away” from the marriage as he could not have this marriage. He did what the Tribunal stated he did. He was forced to tell lies to the Department and the Tribunal. At that stage, he was not able to tell his family about his sexual orientation. He was going through difficult psychological problems. He had to lie to the authorities. He had a family member with him at the time and had to continue the lie. He apologised for that. He was helpless. He just felt he could not behave in a different way. He is telling the truth now.
In view of the many other problems with the applicant’s case, the Tribunal is not persuaded by this explanation. This raises further issues in relation to his credibility and the veracity of his claims.
Seventh, the applicant’s conduct is not consistent with his claims. He has filed with the Tribunal a copy of the Department’s Decision Record dated 1 June 2018. It indicates that he first arrived in Australia on [date] February 2015 as the holder of subclass 600 Visitor visa. On 15 May 2015, he made an onshore application for a second subclass 600 Visitor visa and was granted that visa on 5 August 2015. On 23 November 2015, he applied for a subclass 572 Student visa which was found to be invalid on 25 November 2015. On 26 November 2015, he made a further onshore application for a third subclass 600 Visitor visa and was granted that visa on 7 December 2015. He made another onshore application for a fourth subclass 600 Visitor visa and was granted a multiple entry visa on 7 December 2015 that was valid until 7 June 2016.
The Department’s Decision Record dated 1 June 2018 indicates that the applicant departed Australia on [date] January 2016 and returned on [date] February 2016. He then applied to the Department for a Protection visa on 24 May 2016. This was approximately 1 year and 3 months after he first arrived in Australia and shortly before his fourth Visitor visa expired. The Tribunal raised this as an issue with him and noted that his delay in applying for a Protection visa may lead it to the conclusion that he applied for a Protection visa so that he could extend his stay in Australia and not because he was in need of protection.
The applicant responded that, on the one hand, he was trying to adapt to life in Australia. On the other, he was going through a difficult stage in his life psychologically and was trying to get counselling. It took a while to get his thoughts together and make the application for a Protection visa. The Tribunal does not find this explanation to be convincing as he was living with his sister, [Ms C], in Australia and claims to have disclosed his sexual orientation to her in 2015. He has three sisters who live in Australia all of whom speak English and are Australian citizens. They have lived in Australia since 1985, 1995 or 1996 and 2000 respectively.
The applicant’s evidence is that he first sought immigration advice in Australia in mid-2015. This tends to indicate that he had the support of his sister [Ms C] and/or some other family member to find and instruct a migration agent. He has applied for several visas in Australia prior to lodging his application for a Protection visa. Even if he was unable or unwilling to discuss his sexual orientation with his migration agent, his sister/s or brother-in-law could have assisted him to speak to his migration agent, obtain immigration advice in relation to applying for a permanent visa and lodged his application for a Protection visa in 2015.
The applicant’s delay in applying for a Protection visa is not consistent with his claims and raises issues in relation to his credibility and the veracity of his claims.
Eighth, on the afternoon before the hearing, the Tribunal received a Statutory Declaration from the applicant. In his Statutory Declaration, he made a number of new claims. He claimed that he met a man named [Mr E] at a New Year’s Eve celebration on 31 December 2018. They formed a friendship that developed into a romantic relationship and on 31 December 2019 they decided to get married. They made arrangements for their wedding on [date] May 2020. Unfortunately, the wedding was postponed due to the Covid-19 pandemic. They separated in early 2021.
In his Statutory Declaration, the applicant claimed that when having breakfast in early 2021, [Mr E] asked him what he thought about (Recep) Tayyip Erdogan[2] and he responded “you know what I think”. He then proceeded to give a detailed list of why he disliked him. [Mr E] then thanked him and told him that he had recorded their conversation on video and would happily give it to the Turkish authorities. [Mr E] told him that he had read his messages with [Mr F] and knew that he had cheated on him. He then ended their relationship and told him that the video will get to the Turkish authorities. He checked his telephone and found that all photographs and messages between him and [Mr E] had been deleted. He is concerned that [Mr E] may have done what he threatened and reported him to the Turkish authorities.
[2] President of Turkiye.
During the hearing, the Tribunal discussed these claims with him. He gave evidence that [Mr E] was of Turkish background and an Australian permanent resident. They were happy together. He loved [Mr E] and he acted in a way that showed him that he loved him. He asked [Mr E] to marry him and he accepted. He was shocked when they separated. They had a mutual friend named [Mr F]. He was really [Mr E]’s friend. When [Mr E] was away for 15 to 20 days he had a “short affair” with [Mr F]. [Mr E] knew his passwords and became aware of the messages between him and [Mr F]. He took his revenge and then separated.
The Tribunal has a number of concerns in relation to these claims, the applicant’s evidence and his conduct. Firstly, the Tribunal finds it implausible that he would have proposed marriage to [Mr E] and then organised a wedding in view of his earlier evidence to the Tribunal that he did not participate in any activities in Australia that are organised for homosexuals because he was worried about his future, his application for a Protection visa had been refused (by the Department) and it was psychologically difficult for him.
At the time the applicant claims to have proposed marriage to [Mr E] and then organised his wedding, his future was still uncertain as his application for review was pending before the Tribunal. The Tribunal would expect that if he found it psychologically difficult to participate in activities organised for homosexuals, such as for instance attending the Mardi Gras, it would have been psychologically much more difficult for him to propose marriage to and organise a wedding with a homosexual partner.
Secondly, when the Tribunal discussed this issue with the applicant, he responded that he did not think of his circumstances at the time and his actions were based on what he was feeling. He found someone he loved, he responded in a way that showed that he loved him and he was happy. If this is how he genuinely felt, the Tribunal finds it implausible that he would have jeopardised his relationship with [Mr E] and his future with him in Australia (particularly because of his concerns about the uncertainty of his future) by having a “short affair” with [Mr F] who was a friend of [Mr E].
Thirdly, the applicant’s evidence is that, during the course of their relationship, he and [Mr E] had talked about Turkiye, what was happening there and Turkish politics. In these circumstances, the Tribunal would expect [Mr E] to be aware of his views about President Erdogan. The Tribunal finds it implausible that he would have responded to [Mr E]’s question about what he thought about President Erdogan by giving him a detailed list of reasons why he disliked President Erdogan having already told him “you know what I think”.
Fourthly, it is implausible that the applicant would not have seen [Mr E]’s telephone and been aware that he was video recording him. His evidence was that he did not see the telephone video recording him because it was behind a flowerpot. The Tribunal does not accept this explanation. If the telephone was behind a flowerpot the camera would have been obstructed by the flowerpot and would have recorded the flowerpot and not him. It could have been behind a flowerpot and made an audio recording of the conversation. However, the applicant stated that it was a video recording and not an audio recording.
Fifthly, the Tribunal finds the applicant’s evidence that [Mr E] knew his “passwords”, accessed the text messages between him and [Mr F] on his telephone, decided to end their relationship and then deleted all messages between him and [Mr E] and all photographs of them that were on his telephone to be implausible. If he had a “short affair” with [Mr F], had incriminating text messages between him and [Mr F] on his telephone and if [Mr E] knew the passcode to his telephone, the Tribunal would expect him to have deleted the messages between him and [Mr F] so that they would not be discovered by [Mr E]. Alternatively, the Tribunal would expect him to have ensured that he did not leave his telephone lying around where [Mr E] could have accessed it without his knowledge and risked him discovering his text messages with [Mr F].
The Tribunal concludes that this claim provides the applicant with an explanation for why he is unable to provide any personal evidence, such as photographs or text messages, to support his claims that he was in a committed relationship with [Mr E] that was going to lead to marriage.
Sixthly, at the end of the hearing, the Tribunal raised issues with the applicant in relation to his credibility and the veracity of his claims. His lawyer requested and was granted a further 2 weeks to provide additional evidence and submissions. The Tribunal received post hearing submissions and country information within this timeframe. No request was made for an extension of time to provide further evidence. Approximately 2 months later the Tribunal received further evidence without any explanation for why this evidence was not provided to the Tribunal prior to the hearing and no later than 9 May 2023 as requested, particularly when all the evidence was either available or could have been obtained by that time, or filed at the hearing or during the 2 weeks extension of time after the hearing for the filing of further evidence.
The new evidence provided included a letter dated 10 August 2023 from [Mr H], a wedding invitation, a letter dated 17 January 2020 from [Mr I] and a letter dated 28 January 2020 from [Mr J]. The letter dated 10 August 2023 from [Mr H] indicates that in January 2020 the applicant and his partner, [Mr E], requested that he design and print fifty wedding invitations. However, before the prints could be finalised the order was cancelled due to the Covid-19 pandemic and the money was refunded.
The letter dated 17 January 2020 from [Mr I] indicates that arrangements were made for an event for the applicant and [Mr E] at [a venue] on [date] May 2020 for one hundred guests. The letter dated 28 January 2020 from [Mr J] indicates that [Mr J] is a marriage celebrant who received a Notice of Intended Marriage from the applicant and [Mr E] for a marriage to be solemnised on 1 May 2020. It is addressed to “To Whom It May Concern”.
The Tribunal would expect that, if the applicant required written confirmation of the arrangements made with the marriage celebrant for his own records, the letter from [Mr J] would have been addressed to him and [Mr E]. The fact that it is addressed to “To Whom It May Concern” tends to indicate that this letter was obtained for the purpose of obtaining evidence to support his application for a Protection visa. The above evidence does not overcome the many problems in his case. For all the reasons given herein, the Tribunal concludes that this evidence was obtained to support his application for a Protection visa, that his relationship with [Mr E] was not genuine and that he had no intention of proceeding with the wedding.
Ninth, the applicant’s evidence is that the first person he told about being homosexual was his sister [Ms C], she supported him, encouraged him to return to Turkiye and break off his engagement with his fiancée and subsequently informed other members of his family of his sexual orientation. She lives in Australia, provided him with accommodation when he came to Australia until he eventually moved into his own accommodation and is able to give evidence to corroborate these claims as well as give direct evidence in relation to the reaction of various family members if and when she told them about his sexual orientation, his relationship with [Mr E] and their wedding plans.
The applicant is represented by a lawyer and has had the benefit of getting legal advice in relation to preparing and presenting his case to the Tribunal. The Tribunal considers that his sister [Ms C] is a crucial witness who could have given direct evidence in relation to his material claims. However, she did not provide a written statement to the Department or the Tribunal. She did not attend the hearing to give oral evidence. During the hearing, the Tribunal raised this as an issue with the applicant. He responded that he does not have any issue with his sister [Ms C] giving evidence. It could be organised.
The Tribunal noted that it had sent the applicant a written invitation to the hearing and in responding to the hearing invitation he indicated that he would not be bringing any witnesses to the hearing. He responded that he did not realise that it would be needed. The Tribunal reminded him that he is represented by a lawyer who could give him advice about what witnesses to bring to the hearing.

(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 4181

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice