1823415 (Refugee)

1823415 (Refugee) [2023] AATA 626 (17 February 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael John Doyle
CASE NUMBER:  1823415
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Peter Papadopoulos
DATE OF DECISION:  17 February 2023
DATE CORRIGENDUM
SIGNED:29 March 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

•          Substitute “Nigerian” for “Sierra Leonean” in paragraph 22
•          Substitute “Nigeria” for “Sierra Leone” in paragraph 23
•          Substitute “[April] 2018” for “[April] 2015” in the last bullet point of paragraph 37.
Peter Papadopoulos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael John Doyle
CASE NUMBER:  1823415
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Peter Papadopoulos
DATE:17 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2023 at 11:48am
CATCHWORDS
REFUGEE – protection visa – Nigeria – member of particular social group – homosexual man – beaten and threatened by family and partner killed by mistake for him – fear of harm from influential father – credibility – brief, vague and inconsistent claims and evidence – limited account of orientation, activities and difficulties faced by homosexual men – limited knowledge of claimed partner’s life and account of his killing – unconvincing explanations for inconsistencies – travel with group despite claiming to have been in hiding for a year – authenticity of magazine article provided as supporting evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36(2)(a), (aa), 65
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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

The applicant is a [Age] year old man who claims to be a national of Nigeria.
The applicant arrived in Australia [in] April 2018 as the holder of a [Specified] visa and has not departed since that date.
On 11 May 2018, he applied for a Subclass 866 Protection (Class XA) visa (protection visa).
On 27 July 2018, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
This is an application for review of the delegate’s decision.
The applicant attended a Tribunal hearing on 10 February 2023.
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in his protection visa application, the applicant is a [Age] year old Nigerian national who was born in Enugu in Nigeria.
Based upon information in the protection visa application form that was completed by the applicant on 11 May 2018, the applicant:
·     travelled with various Nigerian [Groups] as a [Group task] for [Specific group members] including to [Country 1], [Country 2], [Country 3], [Country 4] and [Country 5].
·     speaks English and Igbo.
·     lived in Nigeria at [Address], Lagos in the time immediately prior to coming to Australia in 2018.
In relation to his claims for protection, the applicant provided the following information in his application form:
·     His parents were very devoted Catholic Christians. His mother was a leader within the church and their community. His parents had difficulty conceiving a child but after 10 years of trying, multiple tests, and treatment, his mother fell pregnant to himself and his twin brother.
·     He experienced “much love” as a child. He and his brother were inseparable. They did everything together. However, his brother passed away on [Date] from a brain tumour.
·     He found it difficult to cope with his brother’s loss until he met [Mr A] in high school. He and [Mr A] became very close during school, even sharing the same bed and wearing each other’s clothes. [Mr A] expressed his love for him, and he felt likewise. They became boyfriends and agreed to keep the relationship private.
·     On 20 December 2015, his parents introduced him to a girl and told him they had arranged a marriage. He was upset and walked out, returning to his base in Onitsha.
·     When his aunt was killed in a motor accident, and the applicant returned to his parent’s home for the burial. After the ceremony, his father approached him. His father told him, he had to marry before he could leave. It was at this moment, the applicant told his father he had feelings for men, not women, and that he wanted to be with a man.
·     His father contacted an elder in the community and they took him to see a spiritualist to see if there was anything wrong with him. But the spiritualist said there was nothing wrong with him, so they returned to his parents’ home, where they started to beat him. His head was broken and he almost lost his [Body part] because they used something sharp.
·     He left and ran back to his base, vowing to never return.
·     His father is an influential member of the community and he demanded that the applicant change and if he didn’t, he would kill him. His father said that homosexual sex was an abomination.
·     On 1 April 2017, he was at home with [Mr A] when people began knocking on the door. The people had been sent by the applicant’s father. [Mr A] opened the door. Somebody said “you think you can run away?”. The person at the door then raised a gun and shot [Mr A] in the head, killing him instantly. He believes the person mistook [Mr A] for himself.
·     He left his home and fled to Lagos where he remained until he was able to come to Australia for [an Event].
·     He is seeking asylum in Australia as he fears he will be killed by his father or local villagers, or that he will be sent to jail if he returns to Nigeria. He says he cannot relocate within Nigeria because the entire country prohibits homosexual relationships and activities.
Supporting Documents
The applicant lodged the following documents with the Department in support of his protection visa application claims:
· Department Form 868, Part B - Persons included in this application and family composition, which was entirely incomplete
· Department Form 866, Part C - Personal details for each person included in this application, which included a 1.5 page handwritten statement addressing the applicant’s reasons for claiming protection
· The applicant’s Nigerian passport (reference number [Number]) issued [in] 2015 and valid until [2020].
Protection visa application interview
The applicant attended an interview with the Department in connection with his protection visa application on 4 June 2018.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview:
·     The applicant commenced a relationship with [Mr A] in [Year], at school, when he was 18 or 19 years of age. He does not know [Mr A]’s date of birth or his family composition but believes he has at least one brother. He never met any of [Mr A]’s family members. The applicant remained in a romantic relationship with [Mr A] until his death on 1 April 2017.
·     The applicant first knew he was homosexual when [Mr A] declared his love for him as they lay in bed together. The applicant said he had never thought he might be homosexual before but that this discovery made him feel good. He said he was not afraid of being homosexual, but he knew that it was against the law in Nigeria.
·     After school finished, the applicant and [Mr A] moved in together in Onitsha. It was common for two men to share an apartment in Nigeria because of the economy and therefore their behaviour did not arouse suspicion.
·     Whilst living in Onitsha with [Mr A], both men worked as traders. [Mr A] sold [Products 1] whilst the applicant sold [Products 2].
·     The funeral for the applicant’s aunt occurred in February 2016. When the applicant told his father he was homosexual, the applicant’s father took the applicant to a spiritualist, fearing that the applicant was insane. When the spiritualist explained that the applicant was not insane, they returned to the applicant’s father’s house. At this time, the applicant was beaten. He was beaten with something sharp which caused injuries to his head and a [Body part]. He managed to break away from the group beating him and was able to catch a bus back to Onitsha. The group did not chase him. Following the attack, he went to a chemist for treat his injuries. He has not spoken with his parents since.
·     On 1 April 2017, the applicant and [Mr A] were at home. The applicant heard a knock at the door and saw [Mr A] open the door. The applicant saw multiple men. One yelled, “do you think you can runaway” before shooting [Mr A] in the head. The applicant said he was afraid to yell out in case they saw him too. The men fled after shooting [Mr A]. After checking on [Mr A] and confirming he was dead, the applicant also fled. He did not take anything with him except the clothes he was wearing. He does not have any photos of [Mr A] for this reason. His passport was with the [Group].
·     The applicant had previously met a friend of [Mr A]’s at school named [Mr B]. [Mr B] is also homosexual and provided the applicant with accommodation at [Address], Lagos following [Mr A]’s death. The applicant knew [Mr B] was homosexual when he hugged and kissed him. [Mr B] later had a boyfriend but the applicant was unsure of his name.
·     The applicant was issued with a visa to travel to [Country 6] in November 2017. However, he was unable to travel as he had been warned by [Mr B] that the applicant’s father was in Lagos looking for him. [Mr B] knew this through his connections.
·     The applicant travelled to Australia’s with [a Group] as a [Group task] for the [Specific group members]. He said the role required training and he would do so three days per week. Despite being unable to train from April 2017 onwards, he was asked to fulfil this role because of his knowledge and past assistance in the role. He was only asked a few days before leaving for Australia.
·     Once in Australia, the applicant attended [the Event in a Location]. He did not attend [a Function of the event] but was in the [Event venue] that day. He then travelled by plane to Sydney and eventually settled in [Suburb].
·     The applicant has not been in touch with anyone in Nigeria since arriving in Australia, including [Mr B].
·     The applicant has not looked into homosexual life in Australia.
Summary of the delegate’s decision
The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
·     The delegate accepted the applicant’s identity as claimed.
·     The delegate had difficulty accepting that:
o   the applicant’s father would wait over a year (between February 2016 and April 2017) to send people to kill his son, and that he would not communicate with the applicant, having demanded that he “change his mind” before organising for him to be killed
o   the attackers were not given a description of the applicant prior to their arriving at his apartment
o   the applicant could see the attackers shoot [Mr A] but was unable to be seen by the attackers in return
o   the applicant did not make a sound when seeing his partner shot and did not call an ambulance following the shooting
o   the applicant did not take any belongings with him, for either practical or sentimental reasons, when fleeing the apartment
o   the applicant was able to arrive at a friend’s door in Lagos unannounced and able to reside there for 12 months without offering any explanation as to why he needed to stay there
o   the applicant was able to accompany the [Group] as a [Group task] without having attended training for over 12 months.
·     The delegate held further concerns such as how Nigerian officials were able to contact the applicant to arrange for his travels to Australia when the applicant was in hiding, and how [Mr B] was able to learn the applicant’s father was looking for the applicant beyond [Mr B] simply knowing people.
·     With respect to the applicant’s claims to be in a homosexual relationship with [Mr A], the delegate found the applicant’s account of that relationship did not align with what one would reasonably expect of a romantic or other close relationship. The delegate was particularly concerned with the applicant’s lack of knowledge of [Mr A] family composition and birthday given they had been in a relationship for 18 years.
·     The delegate found that the applicant’s claim to have never experienced any doubt or negative feelings regarding his homosexuality was unlikely given the applicant withheld his sexual orientation from his family for years, agreed with [Mr A] to keep the relationship secret, and was aware of discriminatory attitudes towards LGBTI individuals prior to the incident with his father.
·     Ultimately, the delegate found the applicant was not homosexual and, as a result, was not a refugee or otherwise entitled to complementary protection.
Claims and evidence provided to the Tribunal
The review application
On 14 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 29 August 2022, the applicant appointed a legal practitioner, namely Mr Michael John Doyle, to represent him in connection with his review application.
Pre-hearing submissions and evidence
On 1 February 2023, the Tribunal received an email from the representative containing the following attachments:
·     a document entitled “WRITTEN SUBMISSIONS OF THE APPLICANT”, which was signed by the representative on 31 January 2023
·     the DFAT Country Information Report on Nigeria, dated 3 December 2020 (DFAT report)[1]
·     a pdf document containing an extract of three pages from a magazine "Safety and Security Watch” Vol 5 No 6 (magazine extract).
[1] DFAT – Country Information Report – Nigeria (3 December 2020)
I understood the document entitled “WRITTEN SUBMISSIONS OF THE APPLICANT” to contain the following relevant submissions:
·     The applicant is not in Nigeria because he fears persecution from his father, [Mr C] who is the Chief of the [Group] of [a] Kingdom in Enugu State.
·     A single page article in the magazine extract describes the confrontation between the applicant and his father at the time of his aunt’s funeral because the applicant is a homosexual man.
·     According to the DFAT Report which canvassed the nationwide discrimination against LGBTI individuals and specific federal and state laws prohibiting homosexual acts in Nigeria, the applicant would be persecuted for reason of his homosexuality in Nigeria and unable to seek protection from the authorities anywhere in Nigeria.
The hearing: supporting documents and oral evidence
The applicant appeared before the Tribunal on 10 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages. The applicant’s representative also attended the hearing but did not make any oral submissions at the hearing apart from offering some assistance to the Tribunal with respect to advising the Tribunal at the outset of the hearing that the applicant had some command of English but might require the use of the interpreter during the hearing in the event that some complex matters were canvassed or raised.
Taking into account the nature of the claims raised by the applicant and the potential that the applicant might not be forthcoming in his evidence in relation to matters pertaining to his sexual orientation, the Tribunal assured the applicant during the making of its preliminary remarks at the outset of the hearing that the hearing was confidential and that nothing said in the hearing would lead to him being identified outside the Tribunal.
At the outset of the hearing, the applicant provided his original Sierra Leonean passport ([Number]) issued on 27 May 2022. The Tribunal made a photocopy of the biodata page of this document and then returned the document to the applicant during the hearing.
Prior to the hearing, the applicant requested the Tribunal take evidence from three witnesses residing in Sierra Leone. The Tribunal was not provided with any written witnesses statements prior to, or following, the hearing. The Tribunal took oral evidence from these three witnesses during the hearing.
Where relevant, the oral evidence of the applicant and the three witnesses is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The applicant did not provide the Tribunal with any post-hearing submissions or evidence.
CONSIDERATION OF Claims and evidence
Nationality: Country of reference/receiving country
The applicant claims to be a citizen of Nigeria and provided to the Department a copy of his Nigerian passport issued [in] 2015 and valid until [2020]. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Nigeria. The Tribunal accepts that Nigeria is his receiving country for the purpose of assessing his claims for protection.
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170
[5] Sun v MIBP [2016] FCAFC 52 at [69]

The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence.
In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and, as foreshadowed by the representative at the commencement of the hearing, his limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary through the interpreter.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Assessment of claims
At hearing, the applicant stated that he feared that if he were to return to Nigeria his father would kill him because he is a homosexual.
In determining whether the applicant would suffer persecution involving serious harm on return to Nigeria for reason of his homosexuality, the Tribunal has considered the applicant’s evidence about his claimed sexual orientation along with the adverse experiences in Nigeria he claims to have suffered as a result of his sexual orientation.
During the hearing, the Tribunal discussed with the applicant his family composition and relationships, education, employment, where he lived in Nigeria, his history, life in Australia and the problems he experienced in Nigeria and why he fears returning there. The Tribunal found, among other things, there to be discrepancies in aspects of the applicant’s evidence between the written claims in his protection visa application form and statement, what he told the delegate in the interview and his oral evidence to the Tribunal, which undermined his credibility. The Tribunal also found that his claims were difficult to accept because facets of his narrative were implausible and significant aspects of his oral testimony at hearing were vague, generalised and lacked detail. The Tribunal also found the limited documentary evidence and other oral evidence from witnesses to be unpersuasive in terms of supporting his claims.
For the reasons set out below, the Tribunal found the applicant was not a credible witness. The Tribunal considers he has concocted his claim to be a homosexual or a person who would or might be perceived as homosexual.
The applicant’s sexual orientation and identification as a homosexual man
The Tribunal found the applicant’s evidence regarding his claimed sexual orientation and identification as a homosexual by himself and others to be vague, inconsistent and unconvincing.
After extensive discussion with the applicant in relation to his family composition, education, work experience, residential history and immigration history, the Tribunal sought to engage with the applicant about matters pertaining to his sexual orientation including but not limited to:
·     how he chose to describe his sexual orientation
·     how and when he first realised that he was attracted to other men
·     whether he had any difficulties accepting his sexual orientation
·     whether he told others about his sexual orientation and, if so, the circumstances surrounding such disclosure
·     his appreciation and understanding of the difficulties faced by homosexual men in Nigeria including himself, his friends and more generally others
·     his relationships with other homosexual men in Nigeria including his sexual relationships and friendships along with his participation in social activities and engagements with other homosexual men
·     his experiences as a homosexual man outside Nigeria, including during his residences in [Country 1] in [Year], [Country 2] in [Year], [Country 3] in [Year] and [Year], [Country 4] in [Year], [Country 5] in [Year] and Australia since his arrival [in] April 2015.
Asked at hearing how he would describe his sexual orientation and what it meant to him to be referred to as gay, the applicant stated that he had loved his Nigerian male partner [Mr A] because [Mr A] had been very kind to him when they commenced their friendship. The applicant also stated that he felt proud to be called “gay” when he was in the company of other gay people.
Asked how and when he first realised that he was attracted to other men, the applicant stated that these feelings arose in [Year] when he was a 20 year old and met some fellow high school students who “were into gay relationships and practising”. Asked to elaborate, the applicant stated that he saw some young students kissing and wanted to be their friends. Asked to elaborate further upon what he meant by “practising”, the applicant stated that he was attracted to these students when he saw them going out to movies, pubs and restaurants. Asked about how he felt when he approached these students in the hope of securing their friendship, the applicant stated that this felt good because he loved doing the same things as them.
He then stated that he realised that he was gay when first had sex with one of his fellow high school students, namely [Mr A], in [Year]. This was his first sexual encounter. He also stated that he never had sex with women because he was not sexually attracted to them, and that he accepted himself as a gay man and identified as such after having sex with [Mr A] in [Year]. When pressed as to whether he spoke to anyone around this time about his realisation that he was a gay man, including his twin brother with whom he was very close, the applicant stated that he could not remember but insisted that the first person to who he disclosed his sexual orientation was his father in February 2016. When pressed as to why he completed high school when he was in his early twenties, the applicant stated that he had started he had commenced his schooling late and repeated a number of year levels.
Concerned by the applicant’s inability to recall whether he disclosed his sexual orientation to anyone soon after he realised and then accepted within himself that he was gay in [Year], the Tribunal then sought to explore the nature and degree of the applicant’s fears at that time. He stated that two other high school students, namely [Mr D] and [Mr E], began avoiding him at that time because they thought he was gay. He was frightened that [Mr D] or [Mr E], who had seen the applicant in the company of [Mr A] who they thought was gay, might report him to his teachers or his father. Asked whether such reports to his father and teachers arose, the applicant stated that they had not but [Mr D] and [Mr E] continued to avoid him.
The Tribunal finds the applicant’s evidence in relation to the awakening of his sexuality and his journey towards identifying as a gay man to be entirely unconvincing for the following reasons.
Firstly, the Tribunal finds it somewhat difficult to accept that applicant did not experience any sexual attraction or desire prior to that time and found it curious that the applicant was unable to provide any testimony in relation to any inclination towards being attracted to men or women during his teenage years. That said, the Tribunal found the applicant’s evidence in relation to the emergence and acceptance of his desire to have sex with men to be unconvincing as the applicant seemed to suggest that his sexuality was awakened solely by observing and having conversations with other gay students at his high school. While the Tribunal is willing to accept that the applicant may have had such interactions, it is difficult to accept that his realisation that he might be homosexual could be triggered by such conversations without some earlier personal reflection on his part about his sexuality in the context of his peers expressing their sexuality throughout their teenage years.
Secondly, the Tribunal found the applicant’s account of how he realised that he was gay and commenced fraternising with other gay men to be vague, brief and generic. For example, the applicant was unable to provide any compelling testimony of a personal nature in relation to his realisation that he was gay and the way in which he navigated issues such as making friends with other gay men, commencing sexual relationships and establishing a network of homosexual and other friends from whom he could derive companionship and support. The Tribunal found it odd that the applicant did not express any anxiety about how he might be perceived by others in Nigeria, apart from his father and his teachers, when he began developing friendships with other students who were homosexual. The applicant did not articulate any real concern in relation to the potential for him to be ostracised by his community, discriminated against or otherwise persecuted by the authorities. Taking to account his claim that his parents were very devout Catholics and that he had attended a Catholic school in Nigeria, the Tribunal expected that the applicant could have provided more detailed and compelling oral testimony in relation to the depth and range of emotions that he felt when he realised that he was gay as that would have been difficult to reconcile with his upbringing and education.
Thirdly, the Tribunal finds it difficult to accept that the applicant could not recall whether he told anyone about his sexual orientation during the [period] between [Year] and February 2016. After experiencing some ostracism from [Mr D] and [Mr E] in Enugu, as well as making considerable efforts to live a “private” homosexual life during this [period], the Tribunal expects that the applicant would have been able to remember who in Nigeria he told about his sexual orientation during this [period] along with how they reacted to his disclosure.
The Tribunal then sought to explore with the applicant his activities as a homosexual man in Nigeria, including his relationships and social life, along with his knowledge and understanding of the adverse consequences that might arise for him, his partner and any other homosexual friends in Nigeria. When asked to tell the Tribunal about his life as a homosexual in Nigeria, the applicant gave the following response:
I feel good practising it but I didn’t expose it. I was private about it.
Surprised by the brevity of this response, the Tribunal inquired further and was met with a range of responses that were particularly vague, unconvincing and at times evasive. The Tribunal observed that the applicant sought to avoid addressing its line of questioning in a fulsome manner and, when pressed, would deflect the Tribunal’s questions by seeking to narrate a rehearsed script of generic responses rather than engage with the Tribunal about any lived experience as a homosexual man. Asked about his relationship with his partner [Mr A] whom he lived with for almost 20 years, the applicant explained that they spent time together by going to the cinema, watching soccer and attending gatherings such as burial ceremonies and children’s birthday parties or celebrations. They attended these gatherings together and people thought they were “ordinary friends”. The applicant did not elaborate further upon this romantic relationship, which has been his only gay relationship, of almost 20 years.
Asked about how he and his other gay friends felt about having to be “private” about their homosexual lives, the applicant repeated that “it felt good”. Asked to describe the impact on him of having to hide from other people in Nigeria that he was gay, the applicant stated that it “had negative impact somehow”. Asked to elaborate, he stated that he was afraid that he would be discovered and that his school or his father would find out and he was especially fearful of his father knowing because he was powerful. Concerned by the limited nature of this response given that it suggested that no additional adverse consequences or fears had arisen since he first realised he was gay in [Year], the Tribunal asked how he was treated by other [Group members] in [Groups], particularly Nigerian [Specific group members] with whom he associated during training sessions and at [events]. The applicant replied that that he had successfully hidden his sexual orientation by deflecting their constant queries as to why he did not have a girlfriend.
The Tribunal found the applicant’s responses to be vague and lacking in detail given the applicant’s claimed circumstances as an adult male living a “private” gay life in Nigeria for over 20 years. The applicant’s responses did not contain any description of, or demonstrate any understanding or lived experience pertaining to, the stigma arising out of the discrimination and persecution faced by gay men in Nigeria. While the applicant was able to articulate that gay men could be jailed for 14 years in Nigeria and stoned to death in some parts of the country, he was unable to provide any persuasive testimony in relation to the myriad of other difficulties faced by men in Nigeria who are gay, or perceived to be gay, such as discrimination and social disadvantage arising out of their marginalisation. This lack of insight was particularly surprising given that the applicant claimed that he had had a “private” homosexual relationship with [Mr A] for almost 20 years in Nigeria and that, as a couple, they knew and had associated with a number of gay friends during that time.
Asked about how he would meet homosexual men in Nigeria, including in his home town of Enugu, as well as other people in Nigeria who might be supportive towards him despite his homosexuality, the applicant simply stated they would meet in a cinema, pub or a restaurant. The following exchange then transpired:
Tribunal: Why the cinema?
Applicant: Myself and [Mr A] like to go to movies.
Tribunal: How did you meet gay people at the movies?
Applicant: They come and watch movies.
Tribunal: What would you talk about?
Applicant: Gay practice and some things.
Tribunal:What things?
Applicant: Have you got any friends, how you make your living.
Tribunal: Anything else?
Applicant: We talk about each other, have you got any friends to come get involved in gay practice.
Tribunal: Where do gay men socialise in Enugu?
Applicant: No place to socialise and I don’t know where are the hidden places.
Tribunal: But if you were gay, why didn’t you search for these hidden places in Enugu?
Applicant: I looked around and couldn’t find.
Tribunal: How did you search in Enugu?
Applicant: I asked [Mr A] where there’s a gay club in Enugu and he said he doesn’t know.
Taking into account the above interaction with the applicant, the Tribunal found the nature of his testimony to be very brief, vague and unconvincing in relation to him meeting and socialising with other gay men in Nigeria between [Year] and March 2018. Taking into account the risks associated with searching for and meeting other gay men with whom he could socialise on an ongoing basis in Nigeria over a period of almost 20 years, the Tribunal expected that his testimony would have contained a more detailed description of the challenges he faced when meeting homosexual men and developing relationships with them. The applicant also did not provide any explanation as to whether he and [Mr A] met other gay men in Onitsha, a city in which they lived together for almost 17 years, or the challenges they faced when deciding or seeking to establish a friendship support network when they moved to that city as a couple. Furthermore, the Tribunal does not accept that a person who claims to have socialised with other gay students and commenced a relationship with another gay man in Enugu would restrict his search to meet other gay men in that local area to simply asking his partner whether he knew of any clubs and accepting his partner’s answer that he did not.
Taking into account the above, the Tribunal finds the applicant’s evidence in relation to his identification as a gay man, his formation and maintenance of romantic and other relationships with homosexuals in Nigeria and his understanding of the wide range of harm faced by homosexuals in Nigeria to be vague, brief, lacking in detail and unconvincing and considered it did not seem to reflect the lived experience of a gay man in Nigeria. The Tribunal found there was not sufficient evidence to indicate, suggest or otherwise persuade it to conclude that the applicant was a gay man in Nigeria.
The Tribunal then sought to explore the applicant’s life as a homosexual man outside Nigeria when he travelled outside his home country to participate in international [events], specifically during his stay in:
·     [Country 1] for three weeks in [Year] during [an Event]
·     [Country 2] for three weeks in [Year] during [an Event]
·     [Country 3] for one week in [Year] and two weeks in [Year] during [an Event]
·     [Country 4] for two months in [Year] as part of a [tour]
·     [Country 5] for three weeks in [Year] during [an Event]
·     [Location] for two weeks in 2018 during [the Event].
Asked about whether he met other gay men at these events, particularly from other countries, the applicant replied that he did not as he did not ask anyone whether they were gay because he was “under the control” of Nigerian [group leaders] who did not permit him to “go out” where he could potentially meet other gay men. Asked to explain how he managed to obtain his passport from Nigerian [group leaders] and then not return to Nigeria with them at the conclusion of the competition, the applicant explained that the officials simply gave him his passport because they had to travel on an earlier flight and they simply “trusted” him to come back to Nigeria. The Tribunal found the applicant’s characterisation of this level of control to be exaggerated, at least in the Australian context, given that he, and other Nigerian [Group members], successfully managed to escape Nigerian [Group leaders] and abscond by way of remaining in Australia after that [Event] concluded on [Date]. The Tribunal finds it difficult to accept that the applicant was strictly monitored at all times by Nigerian [Group leaders] while he was at the [Event venue] such that he could not potentially meet other homosexuals in the [Venue], or even leave the [Venue] during the [Event] for personal reasons, because he was “under the control” of officials in circumstances where those same [Leaders] gave him his passport and trusted him to return to Nigeria without an escort at the conclusion of the [Event].
The applicant has now been in Australia for almost five years. At hearing, he indicated that he is not in a gay relationship and has never been in a gay relationship since his arrival in Australia in April 2018. When asked if he has attempted to socialise with any gay people in Australia for the purpose of making friends or meeting a partner, he indicated he had tried to find someone over the internet but he was still in “shock” over the murder of his partner [Mr A] in Nigeria on 1 April 2017. Asked what internet sites he had searched, the applicant then clarified that he did not have a smartphone at the time but a gay friend who was a “white guy” conducted the search and located a potential partner for him but he did not follow up that opportunity because he was still in “shock” over the murder of his partner [Mr A] in Nigeria on 1 April 2017. He indicated that he wanted to meet gay men in Australia and planned to do so soon by “going to the club”. Asked which club, he stated that he would find that out a later point in time because he was still in “shock” over the murder of his partner [Mr A] in Nigeria on 1 April 2017. Concerned about whether the applicant had availed himself of support in relation to overcoming his “shock”, including by way of speaking with a doctor, counsellor or a friend, as this appeared to restrict his ability to pursue his life as a homosexual in a country where he was free to do so, the applicant vaguely replied that he told someone in [Suburb] when he arrived there in April 2018. When pressed whether he had told anyone else so that he might potentially deal with his “shock”, he said that he could not remember.

The applicant also indicated that he had not read a gay newspaper or magazine in Australia because he did not know they existed. Asked whether he had attended any support groups for homosexual African men that operate in Australia, the applicant stated that he had not. Asked whether he had been to any social or other [events] for homosexual men in Australia, the applicant again stated that he had not. Given his ongoing experience with [Activity] and the possibility that this pursuit might open social possibilities for him to meet other gay men in Australia, the Tribunal asked whether he had been to a [Facility] or been involved with any [Activity] in Australia. Again, the applicant stated that he had not.
The Tribunal finds that while the applicant appears to have a gay “white” male friend in Australia who has attempted to introduce him to other gay men through an internet dating or friendship networking site, there is very little in his evidence regarding his activities in Australia to indicate or suggest he is gay. The applicant’s evidence in relation to his efforts to address the trauma arising out of witnessing [Mr A]’s death was particularly evasive and vague, especially given his reliance upon that trauma as the reason why he has not been capable of successfully pursuing another romantic relationship in Australia where has been free to do so since his arrival. While the Tribunal accepts that there may be a variety of reasons why he may have experienced difficulty engaging in romantic relationships with other gay men in Australia, the Tribunal considers that if he is gay as claimed he would have had some interaction with others from the gay community at the very least for the purpose of establishing a support network including other gay men to pursue social activities of interest to him that he undertook in Nigeria such as going to the cinema, pubs and restaurants.
Prior to the conclusion of the hearing, the Tribunal raised with the applicant that it had concerns with the applicant’s oral evidence in relation to his account of his life as a homosexual man in Nigeria and Australia, including the limited nature of his evidence relating to the lived experience of many gay men in Nigeria who face a wide range of harm beyond criminal detention and stoning. The Tribunal drew to the applicant’s attention that his vague, generalised and insufficient responses to its questions in relation to these matters was often hesitating and brief, which suggested that he was not homosexual or otherwise a person who might be perceived to be homosexual and that his claims in that regard lacked credibility. The applicant replied that all he said was true. The Tribunal is not persuaded by the applicant’s response as it does not address the Tribunal’s concern. While the Tribunal understands that some applicants may struggle to articulate some matters of an extremely personal nature at hearing and this may give rise to the provision of somewhat brief responses, the Tribunal notes that many of the matters discussed did not require the applicant to reveal information of a sensitive nature and that there was no submissions or evidence before the Tribunal to suggest that the applicant would have had difficulty discussing any aspects of his personal life at hearing.
Finally, it is worth noting that at the conclusion of the hearing, the applicant raised a new claim with the Tribunal that during his time in Australia he had spoken over the telephone with personnel in [a Government department] in Nigeria who had told him that everyone knew that he was a homosexual. Taking into account the late nature of the provision of this claim in the context of a hearing where he had been previously asked about whether he had been successful in concealing his homosexuality, the Tribunal then simply asked when he had received or made these telephone calls. The applicant was unable to elaborate further. Based upon the vague and imprecise nature of this evidence, particularly in relation to specifically when and whom the applicant spoke with regarding these matters, the Tribunal does not accept this claim.
Instances of harm
At hearing, the applicant stated that there were two specific instances of harm that arose for reason of his homosexuality. The Tribunal’s assessment of each of these incidents follows.
Attack on the applicant at his father’s home in February 2016
Included with his protection visa application form, that was signed on 11 May 2018, was a handwritten statement by the applicant in which he described receiving a severe beating from his father and a number of other people at his father’s home in February 2016 after he disclosed his sexual orientation to his father. The applicant claimed that his head was injured along with a [Body part] because a sharp object was used by one of his attackers. He then stated that he “ran back” to “his base” and vowed never to return to that town.
At interview with the delegate, the applicant narrated a similar account of this incident but added that he managed to escape his attackers while they were beating him by running away. He then told the delegate that no-one chased him as he ran away. He had money in his pocket and caught a bus back to Onitsha. He also stated that he did not receive any medical treatment for his injuries because he did not have a doctor and went to the chemist and received treatment there.
At hearing, the Tribunal explored this incident in some depth, focussing upon the nature of the injuries sustained and the escape from harm. The applicant again narrated an account of the events surrounding this incident similar to that told to the delegate but was unable to explain what sharp object was used to injure him during the attack. However, the applicant did show the Tribunal a scar on [a Body part] and what appeared to be a scar on the back of his head and explained that these injuries were bloody.
As it was put to the applicant at hearing, the Tribunal found key aspects of his narrative to be implausible. In particular, the Tribunal indicated that it had difficulty accepting that after having been severely beaten and injured by his father and others, the applicant was not followed by anyone when he escaped and that he caught a bus to Onitsha, a drive that which would have taken at least two hours, to then seek treatment at a chemist rather than a doctor for his bloody injuries. The applicant responded that he ran for his life thinking they were chasing him so there was no point going to a chemist and that is why he boarded the bus to go to Onitsha.
The Tribunal does not accept the applicant’s explanation to satisfactorily address the concern raised above. The response changes the narrative further whereby the applicant explained that he escaped without immediately seeking treatment because he thought he was being chased. This explanation is also inconsistent with earlier evidence told to the delegate at interview that he caught the bus because he knew no-one was chasing him.
Threats made by the applicant’s father to kill the applicant and the shooting of [Mr A] on 1 April 2017
Included with his protection visa application form, that was signed on 11 May 2018, was a handwritten statement by the applicant in which he further indicated that his father was an influential person in their town who swore that he would kill him unless the applicant changed his mind about being a homosexual because it was an abomination. He further stated that his father sent people to his home to kill him. On 1 April 2017, these people arrived at his home and mistook [Mr A] for him and shot [Mr A] in the head killing him instantly. After seeing this, the applicant immediately “ran” to Lagos.
An interview with the delegate, the applicant narrated a similar account of this incident but added that the people mistook [Mr A] for him because they did not know what the applicant looked like. The applicant saw them shoot [Mr A], who fell down and died instantly. The applicant did not shout as he thought this would alert the people to his presence and they would also shoot him. He added that he tried to help [Mr A] but he knew he was dead because he was not breathing. He explained that at a later date he was listening to the radio where it was reported that [Mr A]’s family came to their address to collect [Mr A]’s body after the shooting.
At hearing, the applicant again narrated an account of the events surrounding this incident similar to that told to the delegate but when asked to explain what happened to [Mr A]’s body after he escaped, the applicant said that he did not know because he immediately went into hiding after that incident.
As it was put to the applicant at hearing, the Tribunal found a significant inconsistency between his account of this event given at interview and hearing. In particular, the Tribunal sought an explanation for the discrepancy in relation to his knowledge of what happened to [Mr A]’s body after he was killed on 1 April 2017. The applicant responded by stating that he did not call an ambulance after [Mr A] was killed but gave no explanation for the inconsistent evidence in relation to whether he knew what happened to [Mr A]’s body after he escaped and, if so, how he knew that information.
The Tribunal does not accept the applicant’s explanation to satisfactorily address the concern raised above. The Tribunal expects that the applicant would take an in interest in knowing what happened to his long-term partner’s body after he had witnessed them being shot and be able to clearly explain whether they were dead, what happened to their body and how they acquired that knowledge. The applicant was clearly unable to reconcile the obvious discrepancy between his evidence at interview and hearing in relation to what happened to [Mr A]’s dead body after he fled to Lagos and went into hiding there before coming to Australia.
On the basis of this significant inconsistency, the Tribunal does not accept that this incident occurred and therefore does not accept the applicant’s claim that, because of this incident, he subsequently fled to Lagos and went into hiding there before coming to Australia in April 2018.
For the above reasons, the Tribunal is of the view that the inconsistencies in the applicant’s testimony and other concerns identified fundamentally undermine the reliability of his account, the credibility of his claims and the truth of his evidence. The Tribunal finds the applicant not to be a reliable, credible and truthful witness. His evidence in relation to his account of these instances of harm shows a propensity to tailor evidence in a manner which achieves his own purpose.
Evidence presented to corroborate the applicant’s claims
The Tribunal has considered the magazine extract provided by the applicant immediately prior to the hearing along with the oral evidence of the three witnesses at hearing. The Tribunal’s assessment of this evidence follows.
Magazine extract
The magazine extract contained a one page article about the applicant and his father. The title of the article and its by-line read as follows:
STRANGE BUT True
Drama in [Community] as CHIEF [C] THE [Title] of [Kingdom] in Enugu state seeks the life of his only surviving Son.
At hearing, the Tribunal raised the following five concerns with the applicant that the article did not appear to be authentic or reliable.
Firstly, the article appeared to have been published in this magazine primarily for the purpose of supporting the applicant’s protection claims as it essentially recited those claims.
Secondly, it was difficult to accept that this article about a personal dispute between him and his father would be published in such an inflammatory and tabloid style manner when that magazine otherwise appeared to be a technical publication whose primary readership was security and safety industry personnel. The Tribunal explained that its concern was partly based upon the fact the that the magazine’s website provided that the monthly magazine was:
solely dedicated to investigating and reporting health, safety, security and environment issues to create necessary awareness as well as enthrone a safety culture which all citizens at all levels will understand and key into while keeping professionals abreast of new trends.[6]
[6] (accessed 9 February 2022)
Thirdly, the article contained numerous spelling and grammatical errors which appeared odd given the magazine had a managing editor and an editorial assistant and that there were few, if any, spelling and grammatical errors elsewhere in the magazine extract.
Fourthly, the article mistakenly stated that the applicant’s father had fired a gun at him.
Fifthly, the article’s author was not named in the article nor were the sources of information relied upon by the author.
After raising each of its five concerns with the applicant at hearing and indicating that these concerns may lead it to conclude that the contents of the article were not reliable in terms of being able to support claims pertaining to his relationship with his father and the instances of harm which flowed from that, the applicant responded that the magazine was authentic and that all the information provided in the article was well-known to him and real. The applicant went on to say that his father did shoot at him but did not kill him as he had run away in time.
The Tribunal does not accept the applicant’s explanation to satisfactorily address the concerns raised above. The applicant’s mere assertion that contents of the article were “well-known and real” does not assuage the Tribunal’s concerns in relation to the genuineness of the article and the veracity of its contents. Furthermore, the applicant’s response changes the narrative further whereby the applicant added that his father fired a gun at him, which was inconsistent with his previous evidence at interview and otherwise at hearing in relation to the incident that took place in February 2016. The Tribunal does not accept that the applicant’s father fired a gun at the applicant in February 2016. The Tribunal considers this additional claim to be an embellishment by the applicant at the end of the hearing in a desperate attempt to persuade the Tribunal that the article was authentic and its contents were reliable.
Witness evidence
The Tribunal has considered the oral evidence of the applicant’s three witnesses at hearing. The Tribunal notes that witness statements for these three witnesses were not provided to the Tribunal prior to the hearing, as required by the relevant Tribunal Practice Directions.[7]
[7] COVID-19 Special Measures Practice Direction – Migration and Refugee Matters (2 March 2021), paras 6.7-6.13; Practice Direction – Migration and Refugee Matters (1 August 2018), para 12.1
In relation to [Mr F]’s oral evidence, the Tribunal was advised that this man was the applicant’s friend who would give evidence in relation to the magazine article which stated details of breakdown of relationship between the applicant and his father. The witness did not provide any evidence beyond stating that the contents of the magazine article were true and that he read the article about three years ago when a friend had alerted him to it. The Tribunal finds this witness’ evidence does not overcome the significant concerns identified by it with respect to the magazine article and the applicant’s related claims and does not remedy the defects in the credibility of the applicant’s claims.
In relation to [Mr G]’s evidence, the Tribunal was advised that this man would give evidence in relation to the incident when the applicant’s father attempted to kill the applicant. Asked whether he wanted to tell the Tribunal anything about the relationship between the applicant and the applicant’s father, the witness did not give any evidence in relation to the applicant’s father attempting to kill the applicant for reason of his homosexuality. Instead, the witness told the Tribunal that he was the applicant’s uncle and that the applicant’s father was a drunk and had a temperament who, on several occasions, had battered the applicant’s mother. The witness then explained that the applicant supported his mother instead of his father and this resulted in disharmony between the applicant and his father. The witness stated that, at times, the applicant was threatened by his father because he supported his mother. The Tribunal finds this witness’ evidence does not support the applicant’s claims that he is a homosexual and would be harmed for that reason. In any case, the Tribunal does not give any weight to the statements made by this witness as he did not appear to take seriously the matters being raised with him, did not appear legitimate and appeared to be motivated by familial politics.
In relation to [Mr H]’s evidence, the Tribunal was advised that this man was a friend of the applicant and [Mr A] who would give evidence in relation to the incident when [Mr A] was killed. After identifying himself, the witness stated that he was unable to recall the name of the street in Onitsha where the applicant and [Mr A] lived and had been killed but did state that Christopher was killed somewhere around [Year] to [Year]. The Tribunal finds this witness’ evidence does not overcome the significant concerns identified by the Tribunal with respect to the applicant’s evidence and does not remedy the defects in the credibility of his claims. The Tribunal places no weight on this evidence as the witness was unable to specify the address where [Mr A] had been killed and gave significantly inconsistent evidence to that of the applicant in relation to when [Mr A] was killed.
Overall summary of key findings
On the basis of the evidence before it, the Tribunal accepts that the applicant is a [Year] year old man and a Nigerian national who lived in Nigeria immediately before travelling to Australia. However, having carefully considered the available evidence, for the reasons detailed above, considered cumulatively, the Tribunal finds that the applicant is not a homosexual or perceived to be a homosexual.
The Tribunal finds the applicant has never suffered harm, including the harm claimed during an incident at his father’s house in February 2016, because his father or others perceived him to be a homosexual. The Tribunal also finds that the applicant did not have a homosexual relationship with [Mr A] in Nigeria and that this person was mistakenly killed by his father’s agents when they attempted to kill the applicant on 1 April 2017 as claimed. On that basis, the Tribunal finds that the applicant did not flee Onitsha on 1 April 2017 to go into hiding in Lagos before coming to Australia as claimed. The Tribunal finds that the applicant has fabricated and concocted his claims for protection to achieve an immigration outcome.
In reaching this conclusion, the Tribunal accepts the applicant may have some scars on his [Body part] and on the back of his head as claimed and shown to the Tribunal at hearing, but does not accept these are a consequence of him being attacked during an incident at his father’s house in February 2016 as claimed.
As the Tribunal finds the applicant is not homosexual, is not perceived to be homosexual, and that the incidents of harm as claimed did not occur, the Tribunal finds the applicant does not face a real chance of suffering persecution involving serious harm due to being a member of a particular social group comprising homosexual men, should he return to Nigeria now or in the reasonably foreseeable future.
Conclusion
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 not 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.
Peter Papadopoulos
Member

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

[2023] AATA 626

17 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction