1826409 (Refugee)

1826409 (Refugee) [2024] AATA 2742 (8 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Imogen Maude Hines
CASE NUMBER:  1826409
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Adrienne Anderson
DATE:8 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 May 2024 at 2:20pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – membership of the particular social group – lesbian – a practicing Muslim – in a long-term, genuine, and committed same-sex relationship – subject to verbal abuse, sexual harassment, and rape by members of society because of her sexual orientation – there are not effective protection measures available – applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 279
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 17 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 30 November 2017. The delegate refused to grant the visa on the basis that she did not meet the criteria for the grant of a protection visa.
The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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 they are 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 they 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.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant is a [age]-year-old woman from [Town 1], Pahang, where her parents and four of her five siblings still reside. Another brother resides in Selangor.
The applicant completed her education to a secondary school level in Pahang. She moved to live in Shah Alam in late 2014 or early 2015 and worked for a short period at [Workplace 1] in 2016.
The applicant arrived in Australia on [date] September 2017 with [Ms A].
The Tribunal accepts the above matters to be true.
Applicant’s claims for protection
Before the Department
The applicant lodged an application for a protection visa on 30 November 2017 which included her partner [Ms A] as a member of the same family unit. In her visa application form the applicant stated, in response to a question asking why she left Malaysia, that her partner [Ms A]’s family informed her family of their relationship. She was kept at their house and beaten by her family because it brought shame on her family. She was also scolded by her partner’s brother when he caught them holding hands. The applicant stated that whenever she was out with her partner at a park or elsewhere, other people looked at them badly, and men disturbed them with obscene conversations and pornographic acts. The applicant was afraid that if she returned to Malaysia her family would harm her again and make her marry a man.
The applicant and her partner attended an interview with the delegate in July 2018. After the interview, the applicant provided photographs of her and [Ms A] together as well as two bills demonstrating that the applicant and [Ms A] shared an address in Shah Alam, Selangor. On 16 August 2018 the delegate made a decision to refuse the protection visa. The delegate did not accept that the applicant is a lesbian, that she has ever been in a relationship with [Ms A], that she has experienced any harm or threats in Malaysia, or that she has been harmed or threatened by her family in Malaysia.
The delegate found that the applicant and [Ms A] were not members of the same family unit and made separate decision records in relation to the applicant and [Ms A]. The applicant and [Ms A] each made applications to the Tribunal in respect of those decisions on 10 September 2018.
Before the Tribunal
On 12 April 2024, with the assistance of her representative, the applicant provided to the Tribunal a signed statutory declaration elaborating on her claims. Legal submissions and the following materials were also provided:
a.Relationship registration certificate dated 31 January 2024;
b.Proof of relationship documents: water bill in the applicant and [Ms A]’s names; certificate of insurance in both names; bank statement relating to their joint account; residential tenancy agreement and change of agent/landlord relating to their shared lease;
c.Separate bills in the applicant’s and [Ms A]’s names to the Shah Alam address;
d.Screenshots of [social media] conversations between the applicant and [Ms A];
e.Screenshots of [social media] images of the applicant and [Ms A], including images depicting the applicant with short hair;
f.Short social media videos of the applicant and [Ms A];
g.A 40-page tabled description of photographs of the applicant and [Ms A]. The images depicted the applicant and [Ms A] on holiday together in [countries] in 2015 and 2016, spending time together in Kuala Lumpur, and – in Australia since 2017 – travelling, celebrating milestones, on dates, with the cats they have adopted, and with their friends within the LGBTIQ+ community at parties and events.
h.Images of [Ms A]’s cousins.
The applicant’s claims, contained in her statement, can be summarised as follows:
a.The applicant became aware that she was attracted to girls when she was[age] years old when she was attracted to a friend called [name] and she had different feelings than she had ever had before.
b.At secondary school she became friends with [Ms B], who wore her hair short. The applicant had heard that [Ms B] also liked girls. They became close friends and the applicant was able to be open with [Ms B]. They kissed once but remained friends.
c.When the applicant was [age] years old, she had a crush on another student called [Ms C], with whom she had an intimate relationship on school camp. After this, [Ms C] got a boyfriend which made the applicant feel like she had been an experiment.
d.The applicant was taught that liking girls was wrong according to her religion. During classes where homosexuality was discussed the applicant felt scared because she knew other people thought that it was bad too. She thought that it was unfair because she did not ask to feel this way. The applicant is a practicing Muslim.
e.When the applicant was [age] years old she bought a mobile phone and used it to connect with other LGBTIQ+ people online. She was part of an online community which made her feel like she was not an outsider for the first time in Malaysia. She did not meet any of the women she met online until after high school.
f.After high school, the applicant began sneaking out of her parents’ home in Pahang and travelling to Kuala Lumpur to go on dates with women. The applicant met her dates in public places and they did not display affection towards each other where anyone could see them. The applicant felt safer in Kuala Lumpur because she thought it unlikely to be seen by someone she knew.
g.The applicant’s first relationship was with [Ms D], a woman she met in Kuala Lumpur. At the time the applicant was attending her first semester of college. She was not allowed to live on campus after she was caught sneaking [Ms D] into her room. The applicant ran away to live with [Ms D] in Kuala Lumpur and dropped out of college. Her parents were informed by a lecturer.
h.The applicant returned home and was grounded because she had left college and cut her hair. The applicant’s father whipped her on the back with his belt and criticised her hair. The applicant was locked in her house when her parents went out.
i.The applicant remained in a relationship and moved between Kuala Lumpur and her family home. Her parents began to suspect she was in a relationship with [Ms D]. The applicant’s family began to force her to go on dates with men and her sexual orientation became a subject that they all ignored.
j.During the time that the applicant was in Kuala Lumpur with [Ms D], the applicant confided in [Ms D]’s friend [Mr E] that they were in a relationship. He was not happy about this as he was romantically interested in [Ms D]. One night when the applicant went out with [Ms D], [Mr E] and one of [Mr E]’s friends, the applicant was drugged and raped by the friend.
k.The applicant met [Ms A] online in mid-2014 when she was living in her family home and going through a difficult time. [Ms A] made her happy and excited and helped her a lot. When they moved in together the applicant ran away from her parents.
l.When the applicant and [Ms A] went out together they were treated badly by others in public. They were touched and propositioned by men.
m.The applicant worked at [Workplace 1] during 2016. She confided in her manager about her relationship with [Ms A] because [Ms A] visited often. Her manager and other staff began ignoring and bullying her. She was given less shifts and felt forced to quit because of the way she was treated.
n.The applicant visited [Ms A]’s family twice. On the first occasion they were caught holding hands and [Ms A]’s brother yelled at them and was very angry. They managed to convince him they were just friends. The second time they were caught kissing by [Ms A]’s uncle and the applicant saw [Ms A]’s uncle slap her.
o.The applicant returned to Shah Alam alone and [Ms A] returned after about a month. [Ms A]’s uncle was trying to get [Ms A] to marry a man and told the applicant’s parents about their relationship.
p.The applicant went to visit her family, at their request, for a family gathering. While there, her brother [confronted] her about her sexuality. He beat her and told her she was shaming the family. He told her that if they saw her and [Ms A] together they would report them to the religious police. The applicant’s father beat her with a belt all over her body and she was badly bruised. After a couple of months when everything had calmed down, the applicant moved back to live with [Ms A] again in Shah Alam.
q.Because it was becoming difficult to live safely in Malaysia, the applicant researched leaving Malaysia and found online that LGBTIQ+ people could live freely and safely in Australia.
r.In Australia, the applicant feels free to be her authentic self. She is not scared and can hold hands with [Ms A] without fear. She has found a support network of queer friends. In Malaysia she was depressed because she could not be free and had no choice but to listen to her parents.
s.If the applicant returns to Malaysia she will not be able to dress and express herself freely. She fears that her family will force her to live with them again and present more feminine. She would have to hide her relationships and may be beaten if she disobeys her family.
t.The applicant struggles with her mental health. She has difficulty sleeping and has anxiety. She has problems remembering things and finds it difficult to speak about certain incidents. She has not yet felt ready to go to therapy. She has not disclosed the sexual assault or family violence to her partner and does not want [Ms A] to find out.
At hearing the applicant elaborated on the claims in her statement, describing the applicant’s childhood in a religious and traditional household, her feelings at school when she began to realise her sexual orientation, her feelings towards previous partners, her excitement at connecting with [Ms A], and the way their relationship has progressed over the past 10 years. She explained to the Tribunal that she prefers to dress in a not-typically feminine manner, preferring sports bras and athletic clothing. She also gave evidence on the way that [Ms A] was treated when the applicant visited with [Ms A]’s family and the subsequent abuse the applicant suffered at the hands of her own family. The applicant told the Tribunal of registering her relationship in Australia because she wanted to be more serious with [Ms A] and that she hoped to propose marriage soon. The applicant gave evidence to the Tribunal that she could not go back to Malaysia because she would be sent to a rehabilitation centre and would have no future. She could never be free in herself and would have to live in fear and denial of her relationship and sexuality.
The applicant’s oral evidence to the Tribunal was consistent with her written statement and the oral evidence given to the Tribunal by [Ms A]. It was also broadly consistent with the evidence she gave to the delegate at interview. The delegate’s concerns about the applicant’s evidence are addressed in the section below.
FINDINGS AND REASONS
The Tribunal has had reference to the documentary and photographic evidence provided by the applicant and has also had the benefit of hearing her oral testimony. The Tribunal accepts the applicant’s evidence about her sexual orientation and her relationship with [Ms A] and accepts that they are in a long-term, genuine, and committed same-sex relationship.
The Tribunal found the applicant’s evidence to be consistent and compelling. The applicant provided spontaneous and convincing detail about her realisation that she was lesbian and her relationship history. Her emotional distress at her negative treatment in Malaysia was evident. The applicant disclosed a sexual assault to the Tribunal that was not previously disclosed to the delegate. The Tribunal has not drawn an adverse inference in respect of the credibility of this claim because it is satisfied that this omission is reasonably explained. The Tribunal accepts that the applicant was unrepresented at the earlier stage and that this was a traumatic event that she had difficulty disclosing.
The Tribunal notes that the delegate found that the applicant’s account lacked credibility. However, the applicant was not represented during the departmental process and the Tribunal has benefited from further detailed written evidence from the applicant and extensive documentary evidence of the applicant and [Ms A]’s relationship.
The Tribunal was assisted by further oral evidence from the applicant on the delegate’s concern that the applicant had contacted her family while in Australia and that she had provided them with financial support. The applicant gave evidence to the Tribunal that she had sent money to her mother and sisters because her mother was seriously ill and because she still felt some responsibility towards them. She stated that she had only contacted her family once in Australia, in mid-2018, to check on her mother’s condition. She gave evidence that they did not speak directly about the applicant’s sexuality but that her mother expressed her disappointment with her and the applicant knew this referred to her sexual orientation. This evidence was consistent with the applicant’s other evidence in relation to her family dynamics. The Tribunal is mindful that family dynamics are often complex and multidimensional and does not consider, particularly in light of the applicant’s overall credibility, that this limited contact and financial support to her mother and sisters undermines the credibility of the applicant’s claims to have experienced abuse at the hands of her father and brother.
Based on the applicant’s evidence, the Tribunal accepts that the applicant is lesbian and that she is from a strict Muslim family who are very traditional and expected the applicant to marry and otherwise follow the rules of Islam. The Tribunal also accepts that the applicant first realised that she was attracted to other girls at primary school and that she had intimate relationships with other girls during and after secondary school.
The Tribunal accepts that the applicant is in a long-term, committed relationship with [Ms A] and that they have been living together since late 2014 or early 2015. The Tribunal accepts that their relationship became known to their families in Malaysia and that the applicant’s father and brother were physically abusive in response. The Tribunal accepts that the applicant’s family made threats to report her relationship to the state religious authorities and/or to send her to a rehabilitation centre. The Tribunal accepts that the applicant’s family wished her to marry a man and that she fears they would attempt to force her to do so if she returned to Malaysia. It accepts that the applicant and [Ms A] experienced sexual harassment and discrimination when they were out together in Malaysia and that the applicant’s preferred way of dressing drew adverse attention to them in this way. The Tribunal also accepts the applicant was raped during a previous same-sex relationship.

The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which was provided to the Department and Tribunal. She has consistently stated that she is a citizen of Malaysia and the Tribunal finds that she is a Malaysian citizen. The Tribunal has assessed her claims against Malaysia as the country of nationality and the receiving country.
Refugee criteria
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that the applicant faces a real chance of suffering serious harm which relates to all areas of Malaysia because she is lesbian and in a committed same-sex relationship. Central to this assessment is the following country information:
·The Malaysian constitution does not prohibit discrimination on the basis of sexual orientation and gender identity or expression. There is no provision in law for same sex marriage or civil partnership.[1]
·Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTIQ+ identities and behaviours.
·Adult same-sex acts are illegal regardless of age and consent, pursuant to the federal Penal Code and various state-based syariah laws.[2] The DFAT report on Malaysia gives recent examples of sentences under state-based syariah enactments being carried out,[3] noting, for example, that in September 2018 a syariah court in Terengganu sentenced two women to six strokes of the cane and a fine for allegedly ‘attempting’ to have sexual intercourse.[4]
·Authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy.[5]
·Successive governments have maintained a strong stance against LGBTIQ+ rights. The Barisan Nasional (BN) coalition, which governed from 1957 to 2018, enacted rehabilitation programs, prevention seminars for parents and students, and enforced laws and policies prohibiting the public ‘glamorisation’ of LGBTIQ+ lifestyles, including through restricting the community’s online space.[6] The subsequent Pakatan Harapan (PH) administration, while generally less conservative, was unwilling to engage with LGBTIQ+ issues and in September 2018, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’.[7] DFAT reported that under the Perikatan Nasional (PN) administration which followed PH rule, Malaysia became ‘less tolerant’ towards LGBTIQ+ people.[8]
·Malaysia’s current Prime Minister Anwar Ibrahim, elected in November 2022, stated in January 2023 that LGBTIQ+ rights ‘would never be recognized’ by his administration.[9]
·Authorities have censored and banned LGBTIQ+ individuals from appearing on state media and have also censored films and songs which promote the acceptance of same-sex relations.[10]
·Recent examples of anti-LGBTIQ+ sentiment propagated under the current administration include the halting of a music festival in Kuala Lumpur in July 2023 following the actions of the lead singer of the band The 1975 who kissed a male band member on stage and criticised Malaysia’s anti-LGBTIQ+ laws,[11] and the August 2023 banning of rainbow-coloured Swatch watches produced to celebrate LGBTIQ+ rights, with a punishment of up to three years in jail and a fine of up to 20,000 ringgit for those selling or owning the watches.[12]
·Societal discrimination and violence against LGBTIQ+ people is pervasive in Malaysia.[13] A recent report by SUARAM, an independent human rights organisation in Malaysia, notes that the human rights of LGBTIQ+ people continue to deteriorate in Malaysia, with increasing discrimination and violence taking place with impunity.[14] SUARAM has identified recent instances of extremely violent and degrading speech against LGBTIQ+ people on social media and in parliament, including calls for physical and sexual violence against LGBTIQ+ people, calls to kill themselves or be killed; calls for jihad against LGBTIQ+ people and comparison of LGBTIQ+ people to animals by Members of Parliament.[15]
·The US Department of State’s report on human rights in Malaysia for 2022 records that ‘violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.’[16]
[1] United Kingdom Home Office (UKHO), Country policy and information note: sexual orientation and gender identity or expression, Malaysia (June 2020).
[2] DFAT, Country Information report – Malaysia (29 June 2021) [3.134].
[3] Ibid [3.140].
[4] Ibid.
[5] Ibid [3.141].
[6] Ibid [3.136].
[7] Ibid.
[8] Ibid [3.137].
[9] Bernama, ‘LGBT, secularism, communism will never be recognised in unity govt - PM Anwar’ New Straits Times (7 January 2023) < UKHO, Country policy and information note: sexual orientation and gender identity or expression, Malaysia (June 2020).
[11] Rozanna Latiff, ‘Malaysia halts music festival after same-sex kiss by UK band The 1975’ Reuters (22 July 2023) < ‘Malaysia bans Swatch watches celebrating LGBTQ rights’ Reuters (10 August 2023) <
[13] Ibid [3.143].
[14] SUARAM, Malaysia Human Rights Report 2023 (27 March 2024) 177.
[15] Ibid.
[16] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).
Overall, DFAT assesses that:
LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals…[17]
[17] DFAT, Country Information report – Malaysia (29 June 2021) [3.147].
DFAT also reports that ‘[r]eports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.’[18]
[18] Ibid [3.143].
The applicant has in the past experienced emotional and physical abuse from her family. Her father and brother have beaten and abused her and prevented her from leaving their home by locking her inside. At the hands of her family, she has been subject to pressure and threats to report her to religious authorities and/ or undergo conversion therapy in an attempt to compel her to repress her sexuality and to marry a man. She has also been subject to verbal abuse, sexual harassment, and rape by members of society because of her sexual orientation.
The Tribunal considers, on the basis of the available country information, that the criminalisation of same-sex activities under state laws and the federal Penal Code as well as the government’s public anti-LGBTIQ+ rhetoric contribute to a hostile and oppressive environment which allows for acts of discrimination, harassment, and violence by members of society against LGBTIQ+ people to occur with impunity.
The Tribunal therefore accepts that the applicant faces a real chance of serious harm in the form of mental and significant physical harassment or ill-treatment by her family, the authorities, and society more broadly and that this harm involves systematic and discriminatory conduct as required by s 5J(4) of the Act. Given the entirety of the applicant’s personal circumstances, including her preference to dress or present in a stereotypically male manner, the Tribunal is satisfied that the persecution feared by the applicant applies to all areas of Malaysia.
The Tribunal finds there are no reasonable steps the applicant could take to modify her behaviour to avoid persecution. Such modifications would fall within various exceptions in s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or consciences, and requiring her to alter or conceal her sexual orientation.
The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s membership of the particular social group ‘lesbians’. The applicant’s sexual orientation is a characteristic so fundamental to her identify or conscience that she should not be forced to renounce it and this defining characteristic is not a shared fear of persecution. As such, the Tribunal finds that the applicant is a member of a particular social group as defined by s 5L of the Act and that the applicant fears harm for a s 5J(1)(a) reason.
Given the criminalization of same-sex sexual activity and the government’s public anti-LGBTIQ+ hate speech, the Tribunal is not satisfied that the Malaysian authorities would be willing to provide effective protection measures to the applicant now or in the reasonably foreseeable future. The Tribunal is therefore satisfied, on the basis of the country information before it, that the applicant’s fear of persecution in Malaysia is well-founded and that she is a refugee as defined in s 5H of the Act.
There is no evidence to suggest that the applicant has any right to enter and reside in a third country and the Tribunal finds that s 36(3) does not apply in the applicant’s circumstances.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Adrienne Anderson
Member

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

[2024] AATA 2742

8 May 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies