1821187 (Refugee)

1821187 (Refugee) [2022] AATA 4400 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821187
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Roslyn Smidt
DATE:12 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2022 at 1:05 PM
CATCHWORDS
REFUGEE – protection visa – Ghana – homosexual – beaten by police – credibility concerns – significant inconsistencies – named wife as emergency contact on arrival – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Ghana, applied for the visa on 15 May 2018. The delegate refused to grant the visa on the basis that she found the applicant’s claims lacked credibility.
The applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
background
The applicant is a [age]-year-old man of Akan ethnicity and Christian religion from Ghana. He resided in [Town 1] in [Province 1] until the age of 18 then lived in the Accra area until his departure for Australia in 2018. His father is deceased. His mother and siblings remain in Ghana. He married [in] April 2010 and has two children, the first was born in [year] the second in [year]. He completed middle school in [Town 1] and worked [a government] Department in Accra from May 2000 until March 2018. His duties involved [specified work]
The applicant obtained a passport [in] 2015. With the help of a friend who worked in the medial he obtained a Temporary Activity visa to attend [specified event]. He arrived in Australia [in] March 2018 and applied for protection on 15 May 2018.
CONSIDERATION OF Claims and evidence
The applicant claims that he is at risk of harm if he returns to Ghana because he is homosexual.
Submissions to the Department
In his initial application the applicant stated that he completed Middle School in June [year] and he moved to Accra in July 2015. He claimed that he had been arrested and tortured, shunned by friends and family, incarcerated many times by the security forces, spat on and abused by members of the community because of his sexuality. He said that the authorities would not protect him and he would not be safe anywhere in the Ghana because of the negative attitude towards homosexuals. He did not provide any further details of his past problems or any information on his relationships with men in Ghana.
The applicant was interviewed by the delegate on 15 June 2018. A copy of the delegate’s decision was provided to the Tribunal. I have also listened to the recording of the interview.
The applicant said that his father had died, but he could not recall when. His mother continued to live in [Town 1]. He remained in contact with her for some time after relocating to Accra, but they no longer speak. The only member of his family with whom he continued to have contact at that the time of the interview was his twin brother [Mr A].
The applicant confirmed that he had worked as a public servant in Ghana. He said that his immediate boss knew about his sexuality and had warned him he might face some problems. There was no suggestion that he faced other problems at work.
The applicant said that he first realised he was gay at the age of 18. Apart from his wife, he had never had a relationship with a woman. He had dated three men. People in the community knew he was gay because of the way he walked. One night in the previous year [2017] he was having sex at his home with a former work colleague when local people broke in and beat them brutally. It was the first time he and the other man had been together. The other man managed to escape but he was badly injured. Someone took him to the hospital.
The applicant said that his parents had suspected he was gay because of the way he walked and dressed. They confronted him about their suspicions when he was 20 [in [year]]. His father told him to leave the house. He applied for a government position so that he could leave. After leaving home he rented a place where he lived alone.
The applicant said that he had been in two relationships prior to his marriage. The first was with a man was with a man called [Mr B]. They met at a venue frequented by gay men. They did not live together. The relationship lasted about two years from early 2000 to 2002. It ended because [Mr B] was bi-sexual and also had a girlfriend.
About 18 months after his relationship with [Mr B] ended, the applicant met a man called [Mr C] at a gay friend’s party. They were together for about six months. The relationship ended because he did not like [Mr C]’s drinking. When asked what he liked about [Mr C] he said that he did not like anything about him because he drank. That relationship ended in 2004 after which he sometimes went to places where gay men gathered looking for a new relationship, but nobody touched his heart.
The applicant said that after he left home his father shunned him, but his mother remained in contact. When asked why he decided to marry he said that he had been dating a bi-sexual man, but after the relationship ended and he was lonely, so he decided that he would get married to please his family. His twin brother [Mr A] arranged the marriage. He rarely had sex with his wife during the years they were together. His wife ended the relationship after their second child was born because she found out that he was gay. He had not had contact with her since he left the family home, but he had sometimes gone to his children’s school to see them.
The delegate noted that the applicant had named his wife as his emergency contact in the card he completed when he arrived in Australia and asked why he had named her instead of his brother or a friend. He said that she was the first person who came to mind and added that she was the mother of his children and they might come to Australia in future.
The applicant said that he had begun a relationship with a man called [Mr D] in 2014, before he and his wife separated. They met at a restaurant. They were still in the relationship when he left Ghana, but the relationship had ended because he was looking for someone in Australia.
The delegate noted that the applicant had claimed in his initial application that he had been arrested many times because of his sexuality and asked for details. The applicant said that he and [Mr C] were attacked and beaten by the police when they were observed kissing in their parked car in about 2004 or 2005. The delegate noted that he had previously mentioned being attacked when people came to his house. He said that attack had occurred about two years earlier [in about 2016] when he was with [Mr D]. They had gone out and shortly after they arrived at his home three people entered, pulled them out and beat them. He was in hospital for a week as a result of this attack.
The delegate asked if the applicant had experienced any further problems because of his sexuality. He said that he had been insulted in the street and there had been other incidents, but they were not as serious as the attack when he was with [Mr D].
The delegate noted that the applicant had previously stated that he had been incarcerated and asked for more information. The applicant said he had never been imprisoned and he had been referring to his problems with the community when he made this statement.
The delegate noted that the applicant had claimed that he had been arrested and tortured. He said that he had been referring to the problem he faced with the police.
The delegate noted that he had stated that friends and family had discriminated against him. He said that people did not want to associate with him.
The delegate observed that it appeared that many people knew the applicant was gay and asked how they had become aware of his sexuality. He said that it was because of the way he walked and dressed.
The applicant said that since arriving in Australia he had met some gay men, but he had not been in any relationships. He was trying to meet a man as he would like to get married. He said that he had attended [Church 1] which he described as a gay and lesbian church in [Suburb 1] and had been to venues such as [Venue 1] and [Venue 2] where gay people meet. He had made friends with one or two men from the Church. In her decision the delegate noted that her research had confirmed that [Church 1] was a progressive Christian church open to people of all sexualities.
At the end of the interview the applicant provided:
·two photographs which show him attending [Church 1] and two photographs of him at a nightclub/bar.
·photograph of scars on his [body part]
·a letter stating that he was promoted to the position of [Position 1] in August 2013.
·a letter from the Principal Medical Officer [Clinic 1] dated 7 June 2018 which states that on 5 January 2015 the applicant received out-patient treatment for injuries received when he was attacked by a group of people because he is gay. The injuries are not specified but it states that he complained of severe spinal ache.
The delegate referred to a number of reports and articles which confirm that homosexuality is effectively outlawed in Ghana and that homosexuals face significant problems with the general community as a result of their sexuality. However, she found the applicant’s claims lacked credibility. She did not accept that he was gay and refused his application.
Evidence provided at the Tribunal hearing on 6 October 2022
The applicant said that he had finished school in [year] when he was 18 years old. The same year he realised he was gay and moved to Accra. In Accra he initially he lived with a family friend. He found work as a [Occupation 1] and worked for [an employer] before obtaining a government job in 2000. He visited his family twice when he was 19 but has not visited them again since that time. The only member of his family with whom he is currently in contact is his brother [Mr A].
The applicant said that he had not had any relationships with gay men prior to going to moving to Accra . I noted that he had previously stated that his first relationship was with a man called [Mr B] in 2000 and asked if he had any experiences with gay men prior to that. He said that one of his uncles was gay and had been his mentor. He was killed some years before the applicant moved to Accra. Despite being asked for more information he failed to clarify what he meant by this. He confirmed that he had not had any experiences with men or faced any problems because of his sexuality before he met [Mr B].
The applicant confirmed that his relationship with [Mr B] had lasted for about two years. When asked if he had experienced any problems while he was with [Mr B], he said that sometimes he and [Mr B] forgot themselves and touched each other in public and they were beaten and had to run away. He confirmed that he had commenced a relationship with man called [Mr C] about 18 months after his relationship with [Mr B] ended. He said that he had not experienced any problems when he was with [Mr C]. I noted that this was at odds with the evidence he had provided to the delegate when he said that he had been beaten by the police when they saw him kissing [Mr C] in a car. He then said that he had not experienced any problems when he was in a relationship with [Mr B], but he had been beaten three or four times during his relationship with [Mr C], once by the police.
I noted that the applicant did not appear to have had any gay relationships between the end of his relationship with [Mr C] in about 2004 and his separation from his wife in about 2014. He initially said that this was correct and added that he had not been in any relationships because he had been so severely beaten in 2004 that he had nearly died. He said that the scars on his [body part] were a result of the injuries inflicted during one or more of these beatings. He then added that he had had some casual relationships between 2004 and 2014.
The applicant confirmed that his brother [Mr A] had introduced him to his wife. They lived together for about five years. When asked the reasons for their separation his response was confused. He said that at some time she had realised or suspected that he was gay and confronted him. Initially he denied that he was homosexual, but later he told her he was. He said that he had met a number of gay men during his marriage. Mostly they were friends but sometimes they had sex.
The applicant said had not seen his wife since he they separated, but he continued to support his children and sometimes saw them at the school they attended. He lived alone after leaving his wife.
The applicant said that he had commenced a relationship with a man called [Mr D] after he separated from his wife. The relationship continued until after he left Ghana. [Mr D] advised him to be careful and they did not experience any problems while they were together. He said that [Mr D] had been beaten to death about two years earlier because he was gay.
I noted that the applicant had previously stated that he and [Mr D] had been attacked and severely beaten at his home in about 2015 or 2016 and that he had provided a letter from a health clinic in support of this claim. He said this was not correct and maintained that he had been severely beaten prior to that time. He said that his brother [Mr A] had obtained the letter and he did not know why the date was incorrect.
I noted that the applicant had previously stated that his employer was aware that he was gay but he did not appear to have had any problems because of this. He said that his worked required him to move around a lot, so he had avoided problems.
I asked that applicant about his experiences as a gay man in Australia. He said that he had had a number of casual encounters, but only one relationship. In 2019 he met a man from Perth online and went to live with him. They were together for about two months. After the relationship ended, he returned to Sydney. He was unable to recall where he lived during his time in Perth. He said that he had not had any other relationships since them because he was busy and because of the limitations imposed by Covid. I asked if he had any gay friends. He said that he had been friends with a gay man for about six months. He said that they usually met once a week. He was initially unable to recall the man’s name, but later in the hearing said he was called [Mr E]. He also had a gay friend called [Mr F]. He added that he had attended Mardi Grai but could not provide evidence as his phone had crashed and the person who was going to repair it had moved and it was now lost.
I noted that the applicant had named his estranged wife as his emergency contact when he first arrived in Australia and asked why he had given her details. He said that he thought that his children might come to Australia at some time but was unable to explain how using his wife as an emergency contact was relevant to this. I observed that the fact that he named his wife and provided her telephone number appeared to suggest that they were not separated or estranged. He maintained that they were.
I observed that there were a number of significant inconsistencies in the applicant’s claims which caused me to doubt their veracity. He said that he had difficulty with dates and that he was stressed but maintained that he had told the truth and that he was gay. I also observed that he had not provided any supporting evidence regarding his relationships with men in Ghana or Australia. He asked if I wanted him to provide additional evidence. I asked if he could provide any evidence which could help me to understand his situation. He said that he did not have any evidence to provide.
Findings of fact
For the following reasons I did not find the applicant to be a truthful or a credible witness.
First and most significantly, there a number of inconsistences in his evidence. For example
·     He told the delegate that his parents had suspected he was gay and confronted him about their suspicions when he was [age], in other words is about 2000. His father told him to leave the family home, so he applied for a government position. After leaving home he lived alone in rented premises. At the hearing he said that he left his family home when he was [age], that is in about 1998, and moved to Accra where he lived with a family friend and worked as a [Occupation 1] before obtaining a government job in 2000.
·     In written claims provided with his initial application he said that he had been arrested and incarcerated many times. When questioned about these claims by the delegate he said that he had been assaulted by police, but he had never been arrested or imprisoned.
·     At the hearing he said that he said that he and [Mr B] had been beaten several times during their relationship, but he had not had any problems when he was with [Mr C]. When I noted that his was at odds with his statements to the delgate, he changed his evidence and said that he had not have any problems when he was with [Mr B] but he had been so severely beaten when he was caught kissing [Mr C]h that he did not have any gay relations for about ten years.
·     He told the delegate he had started a relationship with [Mr D] before he separated from his wife. He told me that the relationship started after they separated.
·     He told the delegate that he had been brutally beaten the year before the interview [2017] when he was caught having sex in his home with a former colleague. He said that it was the first time he and the colleague had been together. When reminded of that claim later in the interview he said the assault had occurred about two years earlier [2016], that he had been with [Mr D] with whom he had been in a relationship since about 2014 when they met at a restaurant. He claimed that he was in hospital for a week. In support of this claim he provided a medical certificate which states that he was treated as an outpatient 5 January 2015. At the hearing he said that he had not been attacked during the time he was in a relationship with [Mr D] and that the information in letter regarding when he was attacked was incorrect.

While some of these inconsistencies are relatively minor and could perhaps be the result of poor memory or the stress often associated with providing evidence during a hearing, others are more serious and, in my view the overall pattern of his evidence clearly indicates that he was not providing an honest account of his experiences.
Secondly, I found his evidence regarding his life as a gay man in Australia unpersuasive. He claims that he wishes to establish a lasting relationship with a man in Australia but according to his evidence while he has engaged in casual sex, he has had only one short-lived relationship. I found his description of that relationship vague and unconvincing. And even if I accept his evidence regarding his engagement with the gay community in Australia at face value, it is clear that it has had very limited. While I acknowledge that the Covid 19 pandemic has restricted the ability of people to socialise, he has had ample opportunity to seek out gay men and at least form friendships which I would expect someone who wished to find a life partner to do. When asked about his friendships with gay men at the hearing he claimed to have a friend of six months standing who he met weekly, but he was initially unable to recall his name. I also note that he has not provided any evidence which might corroborate his claim to be gay, for example supporting letters from gay friends or friends who are aware of his sexuality. While I would not have rejected his claims for these reasons alone, I find them to be a further strong indication that he is not gay.
Third and finally, in my view the fact that the applicant named his wife as his emergency contact on arrival in Australia indicates that they were not estranged at that time. I find the claim that he provided her contact details when after they had been separated and had no contact for some years implausible. According to his evidence he was still in contact with his twin brother at that time and could have provided his details. In reaching this conclusion I have considered the claim that he named his because he believed or hoped that his children would come to Australia at some time in the future, but in the absence of a coherent or convincing explanation of why he believed there was a link between the person named on this entry card and his children’s ability to travel to Australia, I do not accept it.
I acknowledge that it is not uncommon for gay men to marry in countries where their sexuality if outlawed or unacceptable and I would not have rejected the applicant’s claim to be gay because he married and had children. However, I do not accept that the applicant has provided an honest account of his relationship with his wife and I find this to be another indication that he is not a credible witness and that he is not homosexual.
After considering all of the evidence I am not satisfied that the applicant is gay. I believe that he made this clam in order to obtain protection in Australia.
In reaching this conclusion I have considered the letter the applicant provided regarding medical treatment he received in 2015. However, according to his evidence at the hearing it was obtained by his brother and incorrectly stated that he was injured in 2015 rather than some ten years earlier. I find this letter to be a fraudulent document and have given it no weight.
I have also considered the pictures which the applicant provided which he states show him attending an event or events at [Church 1] and a night club. I accept that he participated in one or more gatherings at [Church 1] and spent time at a night club at some time. However, the mere fact that he attended a few events attended by homosexual men, does not overcome the problems with his evidence set out above or satisfy me that he is gay.
Finally, I have noted that the applicant has scars on his [body part]. However, as discussed above, he has given significantly differing accounts when he sustained injuries that caused these scars. In these circumstances and in light of the other problems with his evidence, I do not accept that these scars are the result of the applicant being assaulted because he is gay.
CONSIDERATION OF CLAIMS AND EVIDENCE
I am not satisfied that the applicant is gay or that he experienced any problems in Ghana because he was gay or believed to be gay. It follows that I do not accept that there is a real chance that he will experience serious or significant harm if he returns to Ghana now or in the reasonably foreseeable future because he is gay.
There is no suggestion that the applicant fears harm on return to Ghana for any other reason. I am therefore not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Ghana now or within the reasonably foreseeable future.
I am not satisfied that that applicant has a well-founded fear of persecution in Ghana for any of the reasons set out in for any of the reasons set out in s.5J(1). Nor am I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4400

12 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice