1827284 (Refugee)

1827284 (Refugee) [2023] AATA 4143 (5 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Amelia Faraone
CASE NUMBER:  1827284
COUNTRY OF REFERENCE:                   Cameroon
MEMBER:Nora Lamont
DATE:5 September 2023
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 05 September 2023 at 1:38pm
CATCHWORDS
REFUGEE – protection visa – Cameroon – membership of particular social group – bisexual man – relationships with men and women, marriage and child – bashed and prevented from seeing child by guardian – no relationships and recent membership of support group in Australia – consistent claims and unembellished evidence – country information – laws and widespread and systemic discrimination and violence – not reasonable to conceal orientation – additional claims on other grounds given little weight – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3)(vi), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 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 Cameroon, applied for the visa on 7 May 2018.
The applicant appeared before the Tribunal on 1 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was represented in relation to the review.
There are no non-disclosure certificates on the applicant’s file.
Based on copies of the applicant’s passport which was provided to the Department and which a copy of is on the Department file, the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Cameroon and has assessed his claims against that country in relation to s.36(2)(a) and s36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will be harmed in Cameroon because of his bisexuality. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant was born in [Suburb 1] in [Year] in Yaounde Cameroon and is of Ewondo ethnicity. His parents are deceased, and he has [siblings]. The applicant has [children] all of whom reside in Cameroon. The applicant first arrived in Australia in [2018 to represent Cameroon at Event 1]. The applicant currently lives in [Suburb 2] and works as [an Occupation 1] in a [Workplace].
The applicant’s claims before the Department and the Tribunal have remained the same. They are summarised by the Tribunal as follows: [1]
[1] AAT Folio
·The applicant is bi-sexual.
·He was targeted while with another man and bashed.
·The Aunt of his [child] whom [s/he] was living with told him he could not see his [child] and she would expose him for being homosexual and that it was not natural.
·In Cameroon homosexuals are considered evil and abnormal and it is illegal to be homosexual. People call them ‘sorcerers.
·The applicant’s [manager] at [Event 1] his [manager] told him [he performed poorly] because he did things that were unnatural and against mankind. He then absconded from [Event 1].
·He is a Francophone but knows and worked with many Anglophones when he was [an Occupation 2] and there is much violence between the two groups in Cameroon.
·The applicant is opposed to the government and considered joining a political party but was too afraid given his status as an [Occupation 3] in the community.
·If he is returned to Cameroon, he will be stopped by the authorities at the border and if he is lucky, he will be imprisoned but he may disappear.
·He absconded from [Event 1], and he was in the paper in Cameroon. He is well known and will be targeted by the government if he is returned.
Tribunal Hearing
The applicant appeared before the Tribunal with his representative and a French interpreter. The conversation was free flowing, and it did not appear that the applicant was making things up or that he was embellishing his evidence. His original claims remained his claims throughout the hearing.
The applicant spoke of his childhood, he only completed primary school and then he went on to do [an Occupation 2] apprenticeship. Most of the employers in the [Occupation 2] businesses were Anglophones and he is a Francophone. He explained that he didn’t get paid he only got lunch money, but he was living at home so was able to subsist.
His uncle was [an Occupation 4] and by 2007 he was a professional [Occupation 4]. He travelled to many countries representing Cameroon.
He met [Ms A] in 2005. She was also [an Occupation 4], and they went onto have a relationship. In [Year] they had a [child] together, but they broke up before the baby was born. The applicant went onto having [children] with another woman in [Year]. [Ms A]’s sister became the guardian of his [child]. In 2012 he resumed his relationship with [Ms A], and they got married in April 2014 but separated while [working together] in [Country 1].
We spoke about his early feelings towards boys when he was around the age of 15 and the relationships he has had with men and women in Cameroon. He spoke about his relationship with [Mr B] and how he felt frightened due to the anti-homosexual attitudes in Cameroon. He said people called homosexuals ‘sorcerers’ and ‘unnatural’. The applicant said he tried to dress effeminate when he was younger, but his mother scolded him. When he went to [Country 2] he slept with several men and felt like he was free for the first time.
The applicant said somehow [Ms A]’s sister found out about his being bisexual and she stopped the applicant from seeing and speaking with his [child]. When asked how she could have found out he said it may have been the one night when he was with his friend [Mr C] outside [a] bar, and they were kissing when a guy on a motorbike and another guy came up behind them and started attacking them. He thinks maybe this is how [Ms A]’s sister found out.
The Tribunal asked him about his work with the Anglophones and he said most of the [Occupation 2]s were Anglophones and he lived close to them. One night their houses caught on fire (deliberately set) and he assisted in putting them out. The next day he was threatened for helping them.
The applicant talked about his distain for the Cameroon government and how he had wanted to join a political party but was too afraid as he was a well-known [Occupation 3].
The applicant stated that when he [represented Cameroon] in [Australia] at [Event 1 he performed poorly], and his [manager] said to him it was because of he did things that were unnatural and that was why [he performed poorly]. This was the last straw, so he left and didn’t go back. He later applied for asylum.
He has not had any homosexual relationships since being in Australia as he said he was focused on work and getting settled. He did recently join an LGBTI asylum support group going each week to activities and making new friends.
Country Information
Homosexuality is prohibited in Cameroon and society looks in general is conservative and unforgiving to the LGBTI community. The Tribunal considers that country information supports the applicant’s contention that bisexual men in Cameroon face harm arising out of their sexuality and identity. Whilst there is no current DFAT report for Cameroon, a glance at country information from other sources indicates it is a dire situation for the LGBTI community. The following is country information from various sources about the situation in Cameroon.
Same-sex sexual activity is prohibited under the Penal Code 2016, which criminalises acts of ‘homosexuality’. This provision carries a maximum penalty of five years’ imprisonment and a fine. Both men and women are criminalised under this law.
Cameroon’s first Penal Code in 1965 did not criminalise same-sex sexual activity, however an amendment introduced in 1972 added the offence of ‘homosexuality’ which has been retained until today.
There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest. Mass arrests, arbitrary detention, and torture and violence while in custody are commonplace. Many of the reported cases are summarised below, however the frequency of arrests mean that many cases are not included here. In a high-profile case in 2021, two transgender women were arrested under the country’s homosexuality law and received the maximum prison sentence.
There have been consistent reports of widespread and systemic discrimination and violence being committed against LGBT people in recent years, including assault, harassment, threats, extortion, torture and murder. [2]
[2] Cameroon | Human Dignity Trust
Cameroon has prohibited the broadcast of television programs that it says propagate homosexuality in the central African state. Joseph Chebongkeng Kalabubse, president of Cameroon's National Communication Council, which regulates media in the country, said this week media organizations that broadcast programs linked to homosexuality will be severely punished. "The National Communication Council can suspend a media outlet for promoting values that go contrary to our cultural practices and also the laws of our republic," Kalabubse said. "We can suspend the media outlet from one month to six months or suspend its broadcast or its presence in Cameroon."
Kalabubse said acts of homosexuality are prohibited by Cameroonian law, and broadcasting scenes linked to homosexuality is against professional ethics and the laws of nature. The NCC says many of the programs promoting homosexuality are cartoons that are frequently watched by children.
On Friday, Cameroon state broadcaster CRTV reported that foreign media groups such as the Walt Disney Company are trying to represent homosexuals by airing cartoons like "Miraculous LadyBug." In some of these programs, women are seen kissing each other, which is taboo in Cameroon, CRTV reported. Kalabubse said foreign TV stations that air LGBTI content will be suspended from broadcasting in Cameroon. The NCC says Cameroon journalists should immediately remove programs linked to homosexuality or face sanctions.
Gbaka Ernest Acho, a Cameroon Bar Association member, said Cameroonian laws make it possible for journalists to be charged and sentenced heavily for promoting homosexuality. "The chairman of the National Communication Council did just what is contained in the decree reorganizing the National Communication Council. Homosexuality is punished in section 347 of the Cameroon penal code and the sanction gets up to five years of imprisonment," Acho said.
Acho said the NCC, by prohibiting homosexual and lesbian content on TV, is ensuring the respect of people's dignity, and protecting children and youth from practices that are foreign to Cameroon. The NCC decision came less than a month after authorities in Cameroon's capital, Yaounde, closed at least six bars and popular spots they say are LGBTI-friendly.
The police said lesbian, gay, bisexual, transgender and intersex, or LGBTI, people had turned the popular spots into daily meeting arenas and are persuading young people to join the LGBTI community. Rights groups say the police arrested, detained and tortured LGBTI and suspected LGBTI persons. Human rights lawyer Cyril Ayori said Cameroon laws are hostile to LGBTI people.
"Section 52 of the civil status registration ordinance is to the effect that no marriage may be celebrated if the spouses to be are of the same sex," Ayori said. "When this section of the law is read with section 347 of the Cameroon penal code which punishes homosexuality with imprisonment from six months to five years, you will discover that Cameroonian laws are very harsh on homosexuality."
The police say many poor youths are joining the LGBTI community with the false belief that they will become rich. The government says many young Cameroonians think that they can find LGBTI partners and travel to developed countries where the practice is legal and where living conditions are better.
In May 2022, Human Rights Watch said Cameroonian security forces are not protecting LGBTI people from violent attacks and are instead arresting victims.
The organization said Cameroon not only violates its obligations under national and international law, but it condones an atmosphere of violence and hate against LGBTI people by criminalizing LGBTI relations. [3]
The Home office reports the following: [4]
c) Societal treatment of LGBTI persons Cameroonians generally hold a negative view of same-sex relations. Homophobic views are widespread and sources indicate that there is strong societal intolerance of and discrimination against LGBTI persons. Anti-LGBTI rhetoric in mainstream media plays on and may magnify existing societal homophobia (see Societal attitudes and treatment and LGBTI groups, civil society and human rights NGOs).
Religious leaders in Cameroon play a role in perpetuating stigmatization of same-sex relations (see Religious attitudes/treatment). LGBTI persons and persons suspected or perceived to be LGBTI are reported to have been subjected to threats, violent attacks including murder, discrimination and harassment involving intimidation, blackmail, loss of property and eviction, denial of educational opportunities, loss of employment, and difficulties in accessing health care (see Government Page 9 of 39 recognition of LGBT NGOs, Societal attitudes and treatment, Treatment of intersex persons and Access to services). Some LGBTI persons are rejected by their families and some have also experienced physical and sexual attacks, including ‘corrective rape’ and killing (see Societal attitudes and treatment and Violence and discrimination).
A Human Rights Watch reports that there is rising violence against the LGBTI community in Cameroon:
(Nairobi) – Security forces in Cameroon are failing to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from violent attacks and instead are arresting the victims, Human Rights Watch said today. There has been an uptick in violence and abuse against LGBTI people in Cameroon in 2022, according to a leading civil society group.[5]
Findings
[3] Cameroon Communication Council Prohibits LGBTI Scenes on TV (voanews.com)
[4] Country Policy and Information Note Cameroon: Sexual orientation and gender identity or expression version 1.0 February 2020
[5] Cameroon: Rising Violence Against LGBTI People | Human Rights Watch (hrw.org)
The Tribunal finds that the applicant is a bisexual based on his written and oral evidence. As stated above, the applicant has not waivered on his evidence and has not changed his claims since he first sought asylum in Australia. He has gone onto work and is now finding his place in society and joining like minded groups to make friends.
Whilst the Tribunal has turned its mind to the other issues raised, that of being a [defector] and of being a sympathiser to the Anglophones, the greater issue is that of the applicant’s sexual identity. However, the Tribunal also notes that the defection was [reported in the media] in Cameroon and the applicant [is] at risk of being detained and imprisoned or worse upon return to Cameroon. On the issue of the applicant being a sympathiser or friend to Anglophones the Tribunal has given that little weight.
[Information redacted]. This puts the applicant at heightened risk, and he would not be able to return to his home country without attracting the attention of authorities. Due to his stay in Australia, he would be seen as being anti government and would be punished accordingly.
The Tribunal notes that the assessment of protection is a forward-looking assessment, what would happen to the applicant upon return to Cameroon. Past experience can be a guide as to what may occur in the future, but this is only one aspect of the consideration. Country information is clear there is more violence and unrest towards the LGBTI community not less.

The Tribunal notes the provisions of s5J(3) of the Migration Act that states 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 (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status. The applicant is a bisexual and has been so for many years. It is fundamental to his identity and is his true sexual orientation.
The Tribunal considers that the applicant’s subjective fear that he has about his return to Cameroon and for his future is objectively made out on the available country information. The violence the applicant would face does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from his membership of a particular social group bisexual men in Cameroon. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has gone on to consider whether the applicant can avail himself of state protection. Given that the state is an actor of harm in this instance, and being bisexual is illegal, the Tribunal does not consider that the applicant can avail himself of state protection.
Having considered that state protection is not available to the applicant the issue of relocation is not relevant as he cannot move within the state anywhere to avoid the harm, he fears in his home area.
The Tribunal finds that the applicant has a real chance of serious harm arising from his membership of a particular social group bisexual men in Cameroon and he has a well-founded fear of persecution for this reason.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion on s36(2)(a) of the Act.
As the Tribunal has found the applicant to be a refugee there is no need to consider the alternative criterion in s36(20(aa) of the Migration Act.
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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 4143

5 September 2023

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