1818991 (Refugee)

1818991 (Refugee) [2022] AATA 2456 (3 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Phillip Joel
CASE NUMBER:  1818991
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Tania Flood
DATE:3 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 June 2022 at 11:34am
CATCHWORDS
REFUGEE – protection visa – Ghana – member of a particular social group – homosexual man – pressure from family to marry – fear of harm from family of partner, who committed suicide, and people in community – credibility – consistent and plausible claims and evidence despite reticent presentation – no relationship and limited activity in Australia for personal reasons – country information – laws and societal attitudes – state protection not obtainable – treaty right to enter and stay in neighbouring countries limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(3)(vi), 36(2)(a), (3), (4)(a), 65
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 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 Ghana, applied for the visa on 10 May 2018. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Ghana for the reasons claimed.
The applicant appeared before the Tribunal on 30 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from a witness named [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi (Akan dialect) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Ghana for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ghana there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
Summary of claims and evidence
The applicant arrived in Australia [in] March 2018 and applied for a Protection visa on 10 May 2018.
According to information contained in the application for a Protection visa the applicant is a [Age]-year-old citizen of Ghana. He was born in Kumasi in the Ashanti region. He claims to be a Christian. He listed no other family members. He provided no details about his education in Ghana nor any employment history but he listed his occupation as [an Occupation].
The applicant stated that he fears persecution in Ghana as a homosexual male. He said he cannot obtain protection from the Ghana authorities and there is no location where he would be safe. He indicated he would provide a full statement of claims at a later date and further information at his protection visa interview.
In a statement provided to the department the applicant provides the following additional information:
He was born in Kumasi and named [Birth name] but later changed his name to [the applicant] because he didn’t like the name [Birth given name]. He attended junior high school at [named School].
When he was about [age] years old, he realised he was different. He realised he was gay but did not understand the meaning of it. His friends talked to him about girls but he did not feel attracted to girls. He felt more comfortable and closer to boys and he was attracted to boys. He had sexual fantasies at night and he dreamed often of a boy he liked. He started having problems and couldn’t concentrate on studying. He was confused and there was nobody to help him.
He became very close to a friend called [Mr B] and they started experimenting and having sex. A school mate saw them kissing in the school lavatory and started threatening that he would tell other people. He decided to stop going to school.
After leaving school he went to learn to be [an Occupation]. He did an apprenticeship in Kumasi and after completion he started working for himself. [Details deleted]. It was at this time that he met a boyfriend called [Mr C]. They started seeing each other, mostly at [Mr C]’s home as he was still living with his parents. However, his parents became aware of the relationship and they started putting pressure on him to marry a girl.
During that time he was told by [Mr C] that his parents were not happy with their relationship and they had taken him to see a certain pastor to heal him of his “illness”. [Mr C] told him he was not happy and wanted to kill himself. One day he heard that [Mr C] had hanged himself in his room [in] February 2015.
After [Mr C]’s death his family wanted to harm him. Word had spread through the area that they were gay partners. His family heard it and they kept putting pressure on him to marry. To push back the pressure that was on him he told his parents that he needed time to think things through.
He left home and moved to [Suburb 1], another suburb of Kumasi. But word had spread there too that he was gay and people were hostile toward him. One day a group of young men came to his landlord and threatened to burn his house down if he did not kick me out of the house. The landlord immediately told him to leave and threw all his belongings on the street.
He went to the police at [Suburb 2] Police Station and made a complaint although he didn’t tell them the reason why the incident happened or that he was gay. After that they started investigating the matter and he believes they received information that he is gay. He said the police told him that they cannot protect him from harm.
He decided to leave Kumasi for Accra. When he arrived in Accra he went to live with a family friend who did not know that he is gay. He believes that friend would not have accepted him if he knew the truth. He still felt unsafe in Accra.
While living with his friend he came across an old acquaintance who knew about his situation and offered to help him leave the country if he had money. He took his passport and after some months he received a call saying that he should get ready for [Australia]. He paid his friend [amount of money] and he organised his trip to Australia.
He fears he will be killed or seriously physically harmed if he goes back to Ghana by members of [Mr C]’s family or others in the local community.
Protection visa interview
The applicant attended a Protection visa interview on 4 June 2018.
Evidence provided to the Tribunal
The applicant’s representative submitted in an email to the Tribunal on 18 May 2022 that the applicant is illiterate and that the previous submissions were prepared by others. Similarly, it is submitted that the completion of disembarkation documents (Incoming Passenger Card) was done by others. He was not aware of the precise information in the [original] visa application and contests the broad use of the term “fraudulently obtained visa”. The visa was obtained so as to depart an environment of persecution based on sexuality. It is further submitted that the purported safety provided by ECOWAS appears to be most facile given that the maximum period of stay is 90 days only and there is uncertainty regarding the continuity of renewal of such terms.
Documentation attached included a statement from the applicant’s father; a work reference and three photographs of the applicant.
In his statement dated 6 May 2022 the applicant’s father states that he realised his son had some strange attitudes in that he never played with girls or had an interest in ladies. He realised later on that his son was in a relationship with a boy which was shocking to him and so he started pressuring his son to marry a lady. He states that the uncle of his son’s partner came to his premises and informed him about the relationship but his son denied it. Later he realised they were involved. After some time he heard that the boy his son was having an affair with, [Mr C], hanged himself. He states that the boy’s family are looking for his son to harm him and because of that his son moved to stay in [Suburb 1] in Kumasi. However, before he got there the news that he was gay was all over and one day a group of young men went to his house to burn it if the landlord didn’t kick him out. The next thing he knew was that his son was in Accra and the next time he heard from him he had travelled to Australia. He further states that his son’s life is in danger in Ghana as the family of his partner are looking to kill him and the police in Ghana will not protect a gay person. Also, he states that no community in Ghana will accept a gay person.
The applicant appeared before the Tribunal on 30 May 2022 to present arguments and evidence in support of his case. The applicant provided testimony about his background and experiences growing up in Ghana; his reasons for departing Ghana and his fears of returning to Ghana. The Tribunal also heard evidence from the applicant’s friend and former housemate, [Mr A].
FINDINGS AND REASONS
Country of reference
The applicant produced his Republic of Ghana passport at hearing which verifies his claimed identity and nationality. Based on this, and in the absence of any information to the contrary, the Tribunal finds the applicant is a national of Ghana.
Sexuality claims
The Tribunal notes that when delivering his oral evidence the applicant was not expansive and certain of his responses were stilted and could be said to lack detail. However, the Tribunal acknowledges that claims relating to sexuality and sexual orientation can be sensitive and complex and that a person’s culture, socio-economic and education background can affect a person’s ability to talk freely and openly about such deeply personal matters. The Tribunal also notes the applicant in this case was also highly affected by nerves during the hearing. The Tribunal has taken these factors into account when deciding this matter.
Having considered the available evidence, the Tribunal considers the applicant gave a consistent and plausible account of his awareness journey relating to his sexuality and a convincing and heartfelt account of his long-term relationship with his former partner, [Mr C]. The Tribunal also considers he displayed a level of emotion and guilt about the circumstances of [Mr C]’s death which would have been difficult to fabricate. Further, the Tribunal considers he also exhibited genuine fear when discussing the prospect of being returned to Ghana for reason of his sexuality.
The Tribunal notes the applicant’s testimony is also supported by a written statement from his father and the oral evidence of a friend which was not available to the delegate. The Tribunal has placed little weight on the statement from the applicant’s father as it closely resembles the applicants claims and appears contrived. However, the Tribunal has placed much weight on the oral evidence of [Mr A]. [Mr A] confirmed to the Tribunal that he met the applicant in Australia and got to know him when they were living in the same house for a time. He said that the applicant confided to him that he was a practicing homosexual in Ghana and feared returning there for this reason. [Mr A] was not put forward as a witness prior to the hearing and his relationship with the applicant only came to light as a result of the Tribunal’s questions. It was at the Tribunal’s suggestion that [Mr A] gave evidence and he was clearly taken by surprise when asked to speak on behalf of the applicant. His testimony was delivered in a manner which was clearly unplanned and unscripted and the Tribunal is satisfied the evidence he provided was truthful.
According to the applicant he has not entered into a new relationship in Australia and he has not formed associations within the gay community. In the Tribunal’s view he provided convincing reasons for this, including that he lives a quiet life and does not drink or frequent clubs; is unable to engage with online dating forums due to his level of literacy and proficiency in English and not being emotionally ready to move ahead with a new relationship after the death of his former partner. The Tribunal does not consider the absence of a current relationship or efforts to seek out a new relationship a reason to doubt the applicant’s claims in respect of his sexuality.
There were however some matters that raised concerns for the Tribunal in respect of the claimed past experiences of the applicant in Ghana. For example, the applicant claimed to have effectively ceased work and lived a secluded life for three years before departing Ghana in order to avoid harm from [Mr C]’s uncle and the wider community yet he was able to rent private accommodation and pay US[amount of money] to secure a visa and passage to Australia. The Tribunal also found it difficult to accept that [Mr C]’s uncle did not locate and harm the applicant in [Suburb 1], which is reportedly a relatively short distance from his former place of residence, between 2015 and 2018. The applicant also appeared to provide an inconsistent account of how his own family first confirmed their suspicions about his sexuality and his relationship with [Mr C]. On the one hand he advised the delegate that [Mr C]’s mother found this out and informed his mother while on the other hand he claims [Mr C]’s uncle informed his father. While the Tribunal does not take these concerns lightly, for the reasons which appear below, it has not found it necessary to make definitive findings in respect of these claimed events.
Overall, the Tribunal found the applicant’s testimony in respect of his sexuality to be credible. The Tribunal is satisfied that the applicant identifies as a gay man and has a history involving an established long term homosexual relationship in Ghana.
The applicant contends that homosexuality is not accepted or tolerated in Ghana. He fears he will be killed or seriously harmed by [Mr C]’s uncle and will also face harm from society in general.
The Tribunal has first considered the applicant’s claim to fear harm from society in general.
Attitudes towards members of the homosexual community in Ghana, including responses from their own family members, are reportedly poor. Gay and lesbian people in Ghana are affected by stigma, violence, extortion, and threats at both family and community levels. [1] In addition to societal attitudes and discrimination, Ghana’s legislative framework and failure to address violence and discrimination contributes to an environment where lesbian, gay, bisexual and transgender citizens have experienced increasing levels of violence.[2]
[1] State-Sponsored Homophobia 2017: A word survey of sexual orientation laws: criminalisation, protection and recognition, International Lesbian, Gay, Bisexual, Trans and Intersex Association, May 2017; Ghana Campaigners demand decriminalisation of homosexuality after spike in anti-LGBT violence, Independent, 8 January 2018; Country Report on Human Rights Practices – Ghana, United States Department of State, 2021
[2] No Choice but to Deny Who I am: Violence and Discrimination against LGBT people in Ghana, Human Rights Watch, 8 January 2018
According to Ghana’s Criminal Code, ‘unnatural carnal acts’ are criminalised. Section 104 of the Ghana Criminal Code provides:
(1) Whoever has unnatural carnal knowledge:
(a) Of any person of the age of sixteen years or over without his consent shall be guilty of a first-degree felony and shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years; or
(b) Of any person of sixteen years or over with his consent is guilty of a misdemeanour, or (c) of any animal is guilty of a misdemeanour.
(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or with an animal.[3]
[3] State-Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition, International Lesbian, Gay, Bisexual, Trans and Intersex Association, May 2017

The effect of this legislation has been adversely felt by homosexuals in Ghana.[4] A report published in 2017 found while:
…. Homosexual activity is not explicitly referred to, the majority of sources interpret the law as meaning that consensual same-sex conduct between men is a criminal offence. There have been numerous reports of arrests of people accused of engaging in same-sex activity in the last decade, however, there were no reports located of any prosecutions under the law.[5]
[4] Ibid.
[5] Ibid.
A report published in 2018 by Human Rights Watch noted tacit state approval of discrimination and even violence on the basis of real or imputed sexual orientation and gender identity in Ghana, through the retention, despite United Nations recommendations, of ‘anti-gay’ laws.[6]
[6] No Choice but to Deny Who I am: Violence and Discrimination against LGBT people in Ghana, Human Rights Watch, 8 January 2018
Amnesty International’s annual report in 2018 found lesbian, gay, bisexual, transgender, and intersex people in Ghana faced discrimination, prosecution, harassment and violence and noted the parliamentary speaker called for a constitutional amendment to make homosexuality illegal and punishable by law. According to the report, the speaker also stated Ghana would not decriminalise homosexuality as this could lead to bestiality and incest becoming legalised.[7]
[7] Amnesty International Annual Report, 2017-2018, 22 February 2018
A Human Rights Watch researcher observed that the operation of the legislation contributed to an environment where homosexuals in Ghana are subject to discrimination and the risk of violence:
Although LGBT people are rarely, if ever, prosecuted under the country’s anti-gay laws, Wendy Isaack, LGBT rights researcher for the Human Rights Watch said it directly contributes to the climate in which violence against LGBT people is common. “Homophobic statements by local and national government officials, traditional elders, and senior religious leaders foment discrimination and in some cases incite violence”, she added.[8]
[8] Ghana: Campaigners demand decriminalisation of homosexuality after spike in anti-LGBT violence, Independent, January 8, 2018
According to information published in 2018, violence perpetrated against gay and lesbian relatives is a significant issue in Ghana:
This report documents how dozens of LGBT people have, on numerous occasions, been attacked both by mobs and members of their own families, subjected to sexual assault, intimidation and extortion. For instance, in August 2015 in Nima, Accra, a young man was allegedly brutally assaulted by members of a vigilante group known as Safety Empire simply because they suspected he was gay. Also, several men described being severely beaten my mobs of young men – often after being lured into compromising situations and blackmailed on social media. Lesbian, gay, bisexual and transgender Ghanaians interviewed by Human Rights Watch said that the combination of the criminalisation of adult consensual same-sex conduct and the profoundly religious and socially conservative Ghanaian context has an insidious effect on their individual self-expression. All the interviewees said that they either felt they had little choice but to adopt self-censoring behaviour, or worse, deny their sexual orientation or gender identity to avoid suspicion by family members and the communities in which they live. Numerous interviewees told Human Rights Watch that in certain instances, such suspicion has led to violence, extortion and arrests.[9]
The same report states that police sometimes use the law to conduct arbitrary arrests of individuals suspected to be homosexual, and as a way to extort money from them. Such abuses in turn lead to a chain of adverse consequences in victims lives.[10]
[9] No Choice but to Deny Who I Am: Violence and Discrimination against LGBT People in Ghana, Human Rights Watch 8 January 2018
[10] Ibid.
According to a United Kingdom 2022 report, there is strong societal intolerance of and discrimination against LGBTI persons. LGBTI persons face a range of discriminatory treatment from societal actors. They are frequently victims of physical violence and psychological abuse, extortion and discrimination in different aspects of daily life. In general, lesbian, gay and bisexual persons who are open about their sexual orientation, or who are perceived to be are likely to face stigma, discrimination, violence and mistreatment from family members and the wider community which, by its nature and frequency, amounts to persecution. The same report indicates that in July 2021 eight members of parliament introduced the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021 which would proscribe and criminalise any advocacy of LGBT identity, as well as public displays of affection, cross-dressing and more. It is reported that UN human rights experts have urged Ghana’s government to reject the bill saying it seeks to establish a system of State-sponsored discrimination and violence against the LGBTI community.[11]
[11] Country policy and information note: sexual orientation and gender identity or expression, Ghana, May 2022
A United States Department of State report in 2021 outlines reports of police violence, harassment and extortion attempts against LGBTQI+ persons. It states that there were also reports that police were reluctant to investigate claims of assault or violence against LGBTQI+ persons. Stigma, intimidation and the perceived negative attitude of some police toward LGBTQI+ persons were factors in preventing survivors from reporting incidents of abuse. LGBTQI+ activists also reported widespread attempts to blackmail individuals with prosecution difficult due to police inaction. LGBTQI+ persons in prison were vulnerable to sexual and other physical abuse, which authorities generally did not investigate. Beatings and public humiliation of LGBTQI+ persons by community members were common and growing in number. The attacks were sometimes shared on social media in an effort to further humiliate and ostracise LGBTQI+ persons. There was a notable increase in anti-LGBTQI+ statements by political, religious, and community leaders, and media coverage of these statements. The law does not explicitly prohibit discrimination based on sexual orientation and gender identity. LGBTQI+ persons faced widespread discrimination in education and employment.[12]
[12] Country Report on Human Rights Practices 2021 Ghana, United Stated Department of State
The weight of country information outlined above satisfies the Tribunal that if the applicant returns to Ghana and engages in same sex activity or conduct, or is merely perceived to be homosexual, there is a real chance he will face a range of harm from non-state actors including serious physical and mental abuse, stigmatisation, and possible blackmail and extortion from the wider community. The punitive legal environment and lack of protection from discrimination means he could also face problems accessing services and employment. The Tribunal is further satisfied, on the basis of the above reporting, that he may also face arrest, beatings, and other mistreatment at the hands of police officers. The Tribunal notes the applicant cannot be expected to alter or conceal his sexual orientation to avoid being harmed (s5J(3)(vi).
The Tribunal finds the harm which the applicant is likely to encounter is systematic and discriminatory conduct and that the essential and significant reason for the harm is because of his membership of a particular social group, “men who have sex with men”. The Tribunal is satisfied the applicant will face this harm throughout the country and based on the above country information he would not be unable to obtain effective state protection against the harm he fears in Ghana.
For the reasons given above the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm if he returns to Ghana now or in the reasonably foreseeable future for reason of his membership of a particular social group – “men who have sex with men”. Therefore, the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
In light of this finding the Tribunal has not found it necessary to assess whether there is a real chance the applicant will face serious harm at the hands of his former partner’s family.
Information sources which the Tribunal has consulted indicate that the ECOWAS (Economic Community of West African States) protocols have made legal headways in establishing freedom of movement and residency between ECOWAS members states (including Ghana). However, it appears to the Tribunal that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member states. In reality, it appears that there are a number of limitations within the individual member states that have affected this right to reside. Given these shortcomings regarding the implementation of the ECOWAS protocols, the Tribunal is not satisfied the applicant does, at the time of this decision, have an existing liberty, permission or privilege to enter and reside in any other ECOWAS member state (s.36(3)).
In addition, the Tribunal finds on the available evidence that the applicant is saved by s.36(4)(a) of the Act because discriminatory and prejudicial societal and institutional attitudes towards LGBTI persons are reportedly prevalent across the ECOWAS region. The Gambia, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex acts between adults. Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults but do not offer any specific protections. LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin, Ghana and Mali and prosecutions of LGBTI individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults.[13]
[13] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tania Flood
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.
…

[2022] AATA 2456

3 June 2022

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