1831425 (Refugee)

1831425 (Refugee) [2024] AATA 3295 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831425
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Kathleen Timbs
DATE:9 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 May 2024 at 3:13pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – gay men in Malaysia – conformity to gender norms – visibility of sexual orientation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[In] April 2018, the applicant arrived in Australia from Malaysia on a visitor visa that was to expire [in] July 2018.
On 10 July 2018, the applicant applied for a protection visa.
On 24 October 2018, a delegate of the Minister for Home Affairs (the delegate) refused to grant the protection visa.
On 25 October 2018, the applicant made an application to this tribunal for review of that decision.
The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments.
RELEVANT LAW – 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 complementary protection grounds, or because they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
The issue for the Tribunal to determine is whether the applicant meets one of those criteria. To make a decision on his application for review, the Tribunal considered whether he meets the refugee criterion.
Refugee criterion
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)).
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 and are discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and material considered by the Tribunal
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal considered the ‘Refugee Law Guidelines’ prepared by the Department of Home Affairs and the country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) published in June 2021 entitled DFAT Country Information Report: Malaysia (the DFAT Report).
The Tribunal also considered:
·relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for decision;
·a Pre-hearing Information Form completed by the applicant on 7 February 2024;
·oral evidence and submissions made by the applicant at hearing; and
·publicly available reports (other country information) relevant to the decision referred to below.
Nationality
The applicant provided the Department with a copy of his Malaysian passport. The Department has verified that it is authentic and the Tribunal is satisfied he is a Malaysian national. There is no evidence he has rights to protection from any other country and the Tribunal finds Malaysia is the ‘receiving country’ for the purposes of s 5J(1)(b) (discussed below).
Applicant’s background
The applicant was born in Sarawak, Malaysia, on [date].
He is a member of [an indigenous] tribe and is the first born of [number] siblings. He told the Tribunal he was raised as a Roman Catholic.
The applicant has never married and has no children.
He grew up in [Town 1], Sarawak, in the family home with his parents and extended family. His parents are still living in the home with some of his siblings. Other siblings live in other parts of Malaysia.
The applicant told the Tribunal he attended local primary and secondary schools. After leaving school at 18, he said he had various jobs in the area, including as a [Occupation 1] on a [workplace] for four years. In 2012, he worked as a [Occupation 2] for a [business] operated by [Employer 1] near [Town 1]. He moved out of the family home at that time and lived in the employer’s hostel.
He moved to Kuala Lumpur in 2014 where he worked as a [Occupation 3] for [Employer 2] and later as a [Occupation 4] for a [business] called [Employer 3]. In 2018, he was made redundant at work and he moved back to [Town 1] and worked in his uncle’s grocery business. He firstly lived with his family and later moved to live with his uncle.
The applicant told the Tribunal he came to Australia for a holiday a few months after moving home. After he arrived, he said a friend of a friend suggested he apply for the protection visa. Since then, he has worked in a factory and in retail. He has lived in shared accommodation in western Sydney and now lives on his own in a one-bedroom apartment.
Claims for protection
In his visa application, the applicant stated that he is gay and that he is not accepted in Malaysia. He said that his uncle and cousin threatened him and that he was looked down on ‘as some kind of freak’. He wrote that it is shameful to be gay in Malaysia and that he expected to be verbally abused wherever he went. He wrote that if he returned to Malaysia he would be humiliated and would be ‘some kind of laughing stock’. He wrote that ‘the Malays look down on me’ because Malaysia is an Islamic country. He wrote that this would be the case wherever he went in Malaysia and that the police are not effective in protecting gay people.
In his Pre-hearing Information Form, the applicant said he left Malaysia because of his homosexuality and that he would not be accepted and would receive threats of harm. He said he could not return because of the humiliation.
At hearing, the applicant told the Tribunal he was attracted to other boys at school but he did not act on it because it felt wrong to him. He said he made friends with other men he was interested in after leaving school but the relationships did not become serious. They were not romantic and did not involve sexual intimacy.
He did not have any romantic or intimate relationships with women in Malaysia or Australia.
The applicant said that he has a group of friends that he socialises with in Australia from work who know that he is attracted to men. He said he does not go to gay bars in Australia or use gay dating apps because he is not comfortable with that. However, he has met other men that he liked at clubs with his friends and, on some occasions, they have kissed. These have not developed into romantic relationships and to date he has not been sexually intimate with anyone. The applicant said he is interested in developing a relationship but it is hard to meet other gay men where he lives, he is shy and it is difficult for him to consider committing to a relationship with another man in his current circumstances.
The applicant told the Tribunal that he suffered harassment and some physical violence in Malaysia because he was presumed to be gay because of his presentation, rather than because he had gay relationships. He said that he has been subject to harassment from family and workmates because he does not present as ‘a manly man’ and is considered effeminate.
The applicant told the Tribunal that his extended family are intolerant of his presentation and his sexuality. He said their view is that ‘you are a guy, act like one’ and that one of his cousins, who is gay, has left Malaysia to live in Singapore because of their intolerance. He said his cousin assaulted him when he returned to live in the family home in 2018 because of his effeminate presentation and he went to live with his uncle because his father had turned him out of home for the same reason. He said he was not in contact with his family for several years after coming to Australia and did not want them to know where he was. He now has some contact with his mother.
His said the local society, especially Malays, are particularly conservative and that he was subject to taunts, received threats from neighbours and one of them spat on him in public. He said he was not so concerned about physical violence but wanted to leave because he was subject to constant mockery. He said that if he returned, he could not be himself and he would have difficulty modifying his behaviour to avoid attacks of this kind from his family and neighbours.
The applicant said he was constantly harassed at his workplaces (except [Employer 2]) by other male employees because of his sexuality and presentation. He said he was taunted about his friendships with female workmates and the other employees said things like ‘you should cut your balls off’.
The Tribunal suggested he might have been able to live safely and without harassment in a large city like Kuala Lumpur where people might be more tolerant. The applicant said that was not his experience and, not only was he subject to workplace harassment when he lived in Kuala Lumpur, but his neighbour had assaulted him because of his sexuality and the police had ignored his complaint.
Refugee criterion
As outlined above, the applicant cannot meet this criterion unless he is unwilling to return to Malaysia because of a well-founded fear of persecution. A well-founded risk of persecution exists in this case if, among other things:
·the applicant genuinely fears persecution in Malaysia (the subjective test); and
·there is a ‘real chance’ (s 5J(1)) of ‘serious harm’ to the applicant in Malaysia (s 5J(4)(a)) (the objective test).
Genuine fear
The Tribunal is not obliged to uncritically accept all assertions made by an applicant. However, it found the applicant to be an open and credible witness. His evidence was given in a straightforward manner and it was internally consistent. He also gave evidence against his own interests about his failure to form romantic or intimate relations.
In that case, the Tribunal accepts the evidence given by the applicant that he was subject to harassment and violence by his family and neighbours in his hometown; that he was harassed and threatened at his workplaces and that he was assaulted by his neighbour in Kuala Lumpur. The Tribunal notes this evidence is not unlikely given the country information discussed below and it is satisfied the applicant is unwilling to return to Malaysia because he genuinely fears that he would be subject to similar treatment.
Real chance of serious harm
The applicant has not taken advantage of the lively gay scene in Sydney and is not part of the LGBTQI community. He has not used dating applications commonly used by straight and gay people to meet others with a view to forming relationships. The Tribunal does not find that this casts doubt on his evidence about his sexuality. He comes from a conservative cultural background and was not sexually experienced while living in Malaysia. Without a permanent visa, his circumstances are uncertain and his presentation is consistent with evidence that he is a shy person. The Tribunal accepts the evidence of the applicant’s sexuality despite his evidence that he has not been sexually intimate with another man. The Tribunal also accepts his evidence that he does not conform to gender norms. This was also consistent with his presentation at hearing. In that case, the Tribunal considered the country information relevant to the treatment of LGBTQI persons in Malaysia.
Country information
The delegate referred to the DFAT Country Information Report: Malaysia published on 19 April 2018 throughout their reasons. They noted federal laws penalising ‘carnal intercourse against the order of nature’ are rarely enforced and the applicant (as a non-Muslim) is not subject to offences under state Sharia law (page 2). This means there is no real chance of the applicant being subject to prosecution if he were sexually intimate with another man in Malaysia.
However, it does not follow that non-Muslim gay men are not subject to serious harm in Malaysia. Malaysia is a conservative Muslim majority country and the previous government openly criticised LGBTI people (the DFAT Report, paragraph 3.134). The delegate noted that in 2017 it promoted a homophobic video competition to young people about ‘how to prevent gender confusion’; had banned broadcast of shows with gay characters and conducted campaigns to ‘prevent, overcome and correct symptoms of homosexuality in children’. It also endorsed ‘conversion therapy’ (page 3).
Many LGBTQI+ advocates hoped for change with the change of government in May 2018. However, in August 2018, the Blue Boy nightclub in Kuala Lumpur, which had operated without incident for 30 years, was raided by the Federal Territories Islamic Religious Department of Malaysia and 20 men were detained (DFAT Report at 3.319). There were further raids on an LGBTQI massage parlour in 2021 and an LGBTQI+ Halloween event 2022 (UK Home Office, Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity or Expression (UKHO Report) at 4.1.3). In August 2023, police raided the act of a veteran drag queen and arrested attendees (Latiff & Ananthalakshmi, ‘LGBTQ Fears Grow In Malaysia As Islamists Shatter Reform Hopes’, Reuters, 21 August 2023).
LGBTQI+ activists have reported concerns that the situation has worsened under Anwar Ibrahim’s leadership. In May 2023, Malaysia’s law enforcement unit raided Swatch stores at 11 shopping malls across the country for rainbow-coloured watches (‘Malaysia Raids Swatch Stores and Seizes Rainbow Pride Watches’, NBC News, 25 May 2023) and the Government closed down a music festival when a performer kissed another man onstage (‘The 1975 Frontman Matty Healy Kisses Male Bandmate Onstage’, ABC News, 22 July 2023).
Reuters recently reported that ‘LGBTQ communities face increasing scrutiny and discrimination under Prime Minister Anwar Ibrahim’s government’ and that he has ‘vowed that Malaysia would never recognise LGBTQ rights’ (‘LGBTQ fears grow in Malaysia as Islamists shatter reform hopes’, 21 August 2023). It contended that ‘Anwar doesn’t feel politically stable, so he has to be more Islamic than the other side’ and that ‘conservatives have been emboldened’. This is consistent with reports from Human Rights Watch of decisions to fund conversion retreats to ‘rehabilitate’ gay people; to shut down events and programming that promotes LGBTQI+ rights and to censor music and films about LGBTQI+ people (Malaysia: State Backed Discrimination Harms LGBT People, Criminalization, Conversion Practices Threaten Safety, Dignity; 10 August 2022). An activist approached by Human Rights Watch said:
We are regressing, in many aspects, as conservative strand of Islam becomes dominant in shaping the politics and policies that dictate the lives of the country’s citizens including LGBT persons…The exploitation of societal homo/transphobia has proven a convenient way to divert public attention away from government failure to address pressing social issues and rising inequalities.
In the same report, Kyle Knight, senior LGBT rights researcher at Human Rights Watch, claims government action fosters ‘(p)ervasive antipathy toward sexual and gender diversity influences law enforcement, judicial outcomes, family behavior, and public discourse in media toward and about LGBT people’.
This is consistent with the DFAT Report at paragraph 3.137:
In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
The Tribunal notes the reference by the delegate at page 3 to statements made in June 2017 by lawyer and human rights activist, Siti Kasim, that ‘Malaysians were generally accepting of the LGBT community’ and that ‘in Kuala Lumpur, even if they are identified as transwomen, they cannot be arrested unless they are found doing something immoral’. However, since then, transwoman Nur Sajat Kamaruzzaman, who is a cosmetics entrepreneur with a huge social media following threat of detention (Malaysian transgender woman Nur Sajat: 'I had to run away', BBC 19 November 2021) and Carmen Rose, a well-known drag queen, has stopped performing because of a police raid (Drag Queen Quits Amid Growing Conservatism in Malaysia, Reuters, 21 August 2021). Indeed, there are recent reports of threats made to the life of Ms Kasim, herself (‘Siti Kasim Remains defiant After Bomb Threat’, The Star, 23 July 2023).
Rather than finding a society that is ‘generally accepting’, the US Department of State reported in 2023 that ‘violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody’ (US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia, pp 32–33).
DFAT states that members of the LGBTQI+ community hide their identity to avoid harassment, familial ostracism and/or violence and notes that reports of violence by family members towards LGBTQI+ individuals are common. It reports that society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTQI+ (the DFAT Report at 3.143).
The UKHO Report (at 6.2.1) gave two examples of violence against gay men from an online news service and claimed they were ‘the tip of the iceberg as not all cases made it into media coverage’:
·In December 2018, a viral video showed two men beaten up by several unknown assailants for allegedly having sex in a car.
·In June 2017, schoolboy T Nhaveen, died after he was assaulted and raped by bullies in their effort in “reforming” him into a “macho man”.
DFAT reports that transexuals are particularly vulnerable to harassment and violence because of their increased visibility (the DFAT report at 3.144). The UKHO Report (at 6.4.4) referred to a 2019 SUHAKAM report of an interview with transgender people:
all transgender respondents had ‘[…] experienced harassment, abuse, and violence by the general public, the state authorities as well as non-state agents […] 31 respondents shared that they experienced violence from their neighbours or people in their neighbourhood because of their gender identity and gender expression.
Assessment

The applicant identifies as a male but does not conform to gender norms in Malaysia. While he is not at the same risk as a transgender man or woman, his sexuality is highly visible and he is more vulnerable than other gay men might be.
The DFAT Report states at 3.146 that the level and frequency of discrimination faced by members of the LGBTQI+ community differs according to their socio-economic status, religion, geographic location, and degree of openness. It observed that well-educated urban LGBTQI+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas and society is generally more permissive of people who identify as LGBTQI+ in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah.
The overall assessment in the DFAT Report at 3.147 is 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, for transgender individuals, and for LGBTI individuals located in poorer and rural areas.
The Tribunal generally agrees with the assessment but notes other country information indicates the risks may have increased since the DFAT Report was released. It notes above that the applicant would not be subject to prosecution if he returned to Malaysia as might happen to a Malay/Muslim gay man. However, the Tribunal has found he is more vulnerable because he does not conform to gender norms and his sexuality is visible. The Tribunal is satisfied for that reason, if he were to return to Malaysia, he would face harassment in employment situations and in public spaces and he would be subject by society and his family to verbal abuse and would be at a high risk of harm from violence. This treatment includes serious physical harassment that is systematic and discriminatory. In that case, the Tribunal finds there is a real chance that it would amount to serious harm.
All areas of Malaysia
For the applicant to satisfy the refugee criterion, there must be a real chance of persecution (including serious harm) in all areas of Malaysia (s 5J(1)(c)). The DFAT Report at 3.146 states: ‘Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak ...’. The applicant was subject to harassment and violence in his home in Sarawak and, despite the report of greater tolerance, he was also harassed and assaulted in Kuala Lumpur. In that case, the Tribunal is satisfied that the real chance of persecution (including serious harm) for this applicant exists in all areas of Malaysia.
Persecution – Convention reason
For the applicant to satisfy the refugee criterion, the persecution must be for a reason set out in s 5J(1)(a) and that reason must be the essential and significant reason for the persecution (s 5J(4)(a)). One of the relevant reasons is membership of a particular social group.
Section 5L provides that a person is a member of a particular social group if:
·they have, or are perceived to have, a characteristic (other than a fear of persecution) that is shared by each member of the group; and
·the characteristic is innate or immutable, so fundamental to a member’s identity or conscience that they should not be forced to renounce it, or it distinguishes the group from society.
The Tribunal has found the applicant is gay, and, in common with other gay men in Malaysia, this is a characteristic that is innate and immutable. He is therefore a member of the particular social group of gay men in Malaysia, and the Tribunal is satisfied his membership of that particular social group is the essential and significant reason he would be persecuted in the way outlined above if he returned to Malaysia.
Exceptions
Section 5J(3) provides a person does not have a well-founded fear of persecutionif they could take reasonable steps to modify their behaviour to avoid persecution. However, this does not apply if, as in this case, the modification would require the person to conceal their sexual orientation.
Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. Relevantly, s 5L provides that effective protection measures are available to the person in a receiving country if protection against persecution could be provided to the person by the relevant State. The Tribunal accepts the applicant’s evidence is that the police did not act on his complaint of assault in Kuala Lumpur because it is consistent with the country information above at paragraph 43. The Tribunal is satisfied, on that evidence that, while Malaysia has appropriate criminal law and a reasonably effective police force, the applicant cannot access protection from harm inflicted on him from that source because he is gay. In that case, the Tribunal finds that he does not have effective protection measures available to him and the exception in s 5J(2) does not apply.
The Tribunal has found above that the applicant is a Malaysian national and it has no evidence that he has a right to enter any other country. For completeness, it finds the exception for persons with third country protection rights in s 36(3) does not apply.
Conclusions
The Tribunal has found the applicant genuinely fears returning to Malaysia and that the fear is well-founded because there is a real chance of serious harm if he were to do so. It is satisfied that the risk of harm arises because he is a member of a particular social group of gay men, that there would be no effective protection measures available to him, and he has no rights to protection in any third country. He is not obliged to modify the risk to avoid persecution by taking steps to conceal his sexual orientation to avoid persecution.
In that case, the Tribunal is satisfied that the applicant is a person to whom Australia owes protection because he is a refugee. The Tribunal will therefore set aside the decision and remit it to the Department for reconsideration with the direction that he satisfies the criterion for the visa in 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.
Kathleen Timbs
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 3295

9 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction