1902663 (Refugee)

1902663 (Refugee) [2023] AATA 3927 (24 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1902663
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Penelope Hunter
DATE:24 August 2023
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 24 August 2023 at 10:35am
CATCHWORDS
REFUGEE – protection visa – Pakistan – membership of particular social group – homosexual man – fear of harm from family and community – relationship with Pakistani national at time of application now ceased and new relationship with Australian citizen – membership of organisation and attendance at venues and Mardi Gras – oral evidence from partner and supporting statements from friends, colleagues and partner’s sister, and acceptance by partner’s family – straightforward and credible evidence – delay in applying for protection – misunderstanding of purpose of protection visa – country information – legal prohibition and societal discrimination and stigma – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 23 January 2019 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 Pakistan, applied for the visa on 6 February 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under 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.
INFORMATION BEFORE THE TRIBUNAL
The applicant is a [Age] year old male born in Punjab, Pakistan. He claims to be of the Muslim religion. His father is deceased, his mother and [brother] continue to reside in Pakistan. He arrived in Australia on 23 June 2016 as the holder of a Subclass 573 (Student) visa.
At the time of his application, he claimed to be in a de facto relationship with another Pakistani national [Mr A], who lodged an application for a protection visa at a similar time.
The applicant set out in a statutory declaration dated 5 February 2018 the following information to support his claims for protection (in summary):
i.He had feelings for males from a young age, which he forced within himself until he met his friend [Mr B] at high school. They became good friends which developed into a sexual relationship which lasted 13 months.
ii.While doing his year 12 classes he met [Mr A] through a mutual friend. They were initially [Social media] friends from January 2014 and then met in person in December 2014 when [Mr A] moved to Lahore for his English studies. At that time the applicant was also attending coaching classes to sit for the IELTS test. They exchanged numbers and started to meet and speak often.
iii.The applicant was very shy, [Mr A] would share jokes generally about gay relationships. In 2015 he received a message from [Mr A] that he liked him. The applicant was scared and deleted the message. Although he liked [Mr A] he had a fear of the consequences if people found out. Initially he hid his feelings and told [Mr A] that Pakistan was a Muslim country and they should not think like that. However, he could not hide his feelings for long and after a few days told [Mr A] he loved him.
iv.Their relationship was not sexual until mid-2015. They spent some time getting to know each other, and [Mr A] would visit his hostel where he had a private room. Once [Mr A] finished his English classes they decided to take steps to go to Australia on a Student visa. Their parents contacted different consultants but they applied to the same institution. They later realised that they were enrolled at the same institution but at different campuses. The applicant was enrolled in Sydney and [Mr A] in Melbourne.
v.When they were in Australia, they continued to speak by phone and [Mr A] would visit Sydney. In March 2017, [Mr A] decided to move permanently to Sydney and they have lived together as partners ever since. They love each other, go shopping together, movies and restaurants. They go to [Venues] to enjoy themselves.
vi.Their plan was to successfully complete their studies and then apply for a skilled or employment visa. Then they also came to know about refugee visas for gay males. He had thought that refugee visas were for people coming by boat seeking protection from civil war. Their friend [Mr C] advised them to seek immigration assistance and they received advice that they could lodge a protection visa application based on his sexual orientation.
vii.The applicant fears that if he returns to Pakistan he would face serious harm from his family, relatives, extremists and conservative Pakistani society because:
a.He is a gay male.
b.He is a gay male from the Islamic state of Pakistan.
c.He is in a male partnered relationship.
d.Islamic extremists would consider him an infidel or a person who has violated the traditional values of Islam.
e.His family will think him a person who has damaged their reputation and honour and may take revenge by way of honour killing.
viii.He could not get effective protection from the Pakistani authorities because homosexuality is considered a crime.
ix.He could not move elsewhere in Pakistan because he would be identified as a gay male anywhere because of his relationship with his partner. He no longer wants to hide his sexual identity.
The applicant was invited to attend an interview before the delegate on 17 January 2019. Prior to the interview the applicant submitted the following additional documents:
i.An additional statutory declaration of the applicant sworn 16 January 2019, confirming that he is in a homosexual relationship with [Mr A] and they attended Mardi Gras fair day in 2017 and Mardi Gras in 2018. Their friends at work know of their relationship and they are open to them. They live together and share the same bed, have a joint bank account and are actively involved in LGBTI+ [organisations]. They have a plan to marry. The applicant fears returning to Pakistan as he cannot live with his partner and if they do they will face serious harm including killing.
ii.A statutory declaration of [Mr D], friend and former work colleague of the applicant, sworn 15 January 2019. Stating that the applicant has told him about his relationship with [Mr A], he has met them both and noticed that they are close and enjoying their relationship.
iii.A statutory declaration of [Mr C], friend of the applicant and [Mr A], sworn 16 January 2019. He is an openly gay male from Pakistan, he told them to seek immigration advice and provided them with contact detail at the end of 2017.
iv.A statutory declaration of [Ms E], work colleague of [Mr A], sworn 13 June 2018. Stating she knows that [Mr A] is gay because they have discussed it and she has met his partner on several occasions when he has visited the workplace.
v.A statutory declaration of [Ms F], former work colleague of [Mr A], sworn 9 January 2019. Stating she is aware that [Mr A] is gay, has seen him with his boyfriend and they are in a very happy relationship.
vi.Sydney Gay and Lesbian Mardi Gras concession membership of the visa applicant and [G], each expired on 8 March 2019.
vii.A [Bank] joint account statement of [Mr A] and [the applicant] for the period 4 Dec 2017 – 30 Jun 2018.
viii.Photographs of the applicant with friends and his partner [Mr A], at various locations and attending the Sydney Gay and Lesbian Mardi Gras, ranging from 2016 to 2018.
Tribunal application
The Tribunal received an application for review from the applicant on 6 February 2019.
On 15 August 2023, the Tribunal received the following documents in support of the review application:
i.A statutory declaration of the applicant, sworn 15 August 2023. The applicant claims there was a minor mistake in his visa application where he did not mention details of his sister in the application. He was in a loving relationship with [Mr A] until December 2019. They separated because they started to develop differences of opinion, and they no longer communicate. He then started seeing another man he met through Grindr from late 2020 until March 2021, but they did not enter into a committed relationship. In April 2022 he started a relationship with [Mr D] who had been his friend since 2018 when they worked together at [Employer]. Their relationship is ongoing, [Mr D]’s family know about their partnership and it is a comfortable relationship, they are talking about living together and the applicant is considering a spousal commitment.
ii.A statutory declaration of [Mr D], signed 15 August 2023. He is an Australian citizen born in Western Australia. When he first came to Sydney in December 2017 he met the applicant while working for [Employer]. At the time the applicant was in a relationship with [Mr A]. When they broke up the applicant was left heartbroken and he would meet him to provide support and counsel although he was in a relationship with someone else. In December 2022, they were both single and increasingly would hang out together. In April 2023 they became intimate. They are now a couple, he is madly in love with the applicant and discuss their future together. He has broken news to his friends and family of their relationship and they plan to travel together to Western Australia for Christmas.
iii.A statutory declaration of [H], sworn 15 August 2023. He is an Australian resident and close friend of [Mr D] who he confirms is in a close relationship with the applicant. He learnt about their relationship in April 2023 and has witnessed them together.
iv.NSW Government Fair Trading, Certificate of Registration in the name of the applicant (expiry 7 June 2023) for:
a.Certificate of Registration [Occupation 1]; and
b.Certificate of Registration [Occupation 2]
v.[Education provider], Record of Results for a Certificate II in [Subject] from [a] Training Package, for the review applicant, achieved 27 November 2018 and issued 18 January 2018
vi.Statement of Attainments issued to the applicant for the applicant’s [Education provider], Certificate II in [Subject], achieved 18/01/2018 and issued 19/01/2018
vii.The applicant’s [Education provider], Statement of Attainment for ‘[Unit 1]’ as part of his Certificate II in [Subject], achieved 18/01/2018 and issued 19/01/2018
viii.A Statement of Attainment of the applicant for ‘[Unit 2]’ as part of his Certificate II in [Subject], issued 30/11/2017 and expired 29/11/2020
ix.NSW Government Fair Trading, letter to the review applicant advising his Certificate of Registration under [Legislation] has been approved, dated 8/06/2022
x.A serious of photographs of the applicant in social settings, at the Sydney Gay and Lesbian Mardi Gras in 2020, 2022 and 2023
xi.Screenshot of an invitation to march at the 45th Mardi Gras Parade held on 25 February 2023 that shows the applicant in a group photo taken at the 2020 Mardi Gras.
On 18 August 2023, the applicant provided a statutory declaration of [Ms I], sworn 18 August 2023. [Ms I] is the brother of [Mr D], and attested that he was in a romantic same sex relationship with the applicant. She had met the applicant through her brother in December 2022, prior to them commencing a relationship and she has invited both of them to visit with her family in Western Australia.
The applicant appeared before the Tribunal on 21 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr D]. The applicant’s representative also attended the hearing. Where relevant the Tribunal has set out the evidence presented by the applicant and [Mr D] at hearing below.
Country Information
DFAT Country Information Report, Pakistan 25 January 2022
3.101Sexual activity between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual ‘carnal intercourse against the order of nature with any man, woman or animal’, punishable by prison sentences of 2-10 years. Uncertainty around the definition of ‘carnal intercourse’ makes it unclear whether this provision applies to sexual activity between women. Section 377 is rarely enforced, although there are reports police threaten LGBTI people with it to extract bribes or sexual favours.
3.102Homosexuality is deeply taboo in Pakistani society. While cities such as Karachi reportedly have an active underground LGBTI scene, people coming out as gay or lesbian in Pakistan are likely to face ostracism from their families, forced heterosexual marriage, discrimination, bullying and violence. There are reportedly pockets of acceptance among urban, upper-class communities, but even wealthy individuals face discrimination, and their families may force them into a heterosexual marriage to preserve the family’s reputation. In April 2014, Muhammed Ejaz, a man from Lahore, killed three gay men he had met online. He told police he wanted to send a message about the evils of homosexuality.
3.103There is a degree of acceptance of hijra (a male-to-female transgender identity often referred to by the broader term ‘transgender’ in English) in Pakistan, in part due to Islamic tradition, which includes mention of transgender people in scripture. Pakistan has enacted a number of laws protecting the rights of hijra, and the Council on Islamic Ideology, a consultative body, has spoken out against discrimination against them. The Transgender Persons Protection of Rights Act (2018) gives hijra full access to rights and documentation such as national identity cards, driver’s licenses and passports, in accordance with their gender identity. The law prohibits discrimination and harassment of transgender people, and protects their rights to health and access to public places. Transgender people have successfully brought lawsuits against people and organisations who breach these laws. In 2019, a government health insurance scheme was extended to transgender people. Some 13 transgender candidates stood for election in 2018, and in 2019 Pakistan’s Minister for Human Rights appointed a transgender woman to her department for the first time.
3.104Despite these steps, transgender Pakistanis are often marginalised, discriminated against and abused. Transgender women are often rejected by their families and turn to sex work, or earn their income by begging or dancing at carnivals and weddings. Such work is highly visible and workers are vulnerable to physical and sexual violence. There are frequent media reports of transgender people being targeted through rape, honour killings and societal violence. Such incidents are especially common in Khyber Pakhtunkhwa, where 66 transgender people were killed between 2015 and 2019 without any arrests being made, according to Trans Action Alliance, an NGO. Notwithstanding the law, many transgender people reportedly still face barriers to accessing health, policing and other services.
3.105DFAT assesses that gay and lesbian people in Pakistan face a high risk of official and societal discrimination and a moderate risk of violence. LGBTI people in general often attempt to reduce their risk of violence and discrimination by hiding their sexual orientation or gender identity from family and others. Transgender people face a high risk of violence and societal discrimination throughout the country. Despite laws to protect them, transgender people face a moderate risk of official discrimination at the hands of police and other officials on the basis of their gender identity.
US Department of State, in its annual report on human rights practices when commenting on violence against LGBTQI+ persons reports that violence, discrimination, and stigma continued against LGBTQI+ persons. The crimes often went unreported, and police generally took little action when the received reports.[1]
[1] Country Reports on Human Rights Practices for 2022 – Pakistan: US Department of State 20 March 2023

The UK Home office, in a country information note reports the following:
Pakistan is a conservative Muslim society in which anti-LGBTI attitudes persist and are widespread. LGBTI persons face societal discrimination and stigma as well as family and societal pressure to conform to cultural and religious norms, including marriage. Whilst men who have sex with men (MSM) is reported to be a common phenomenon, being openly gay (or lesbian) is not.[2]
Various sources maintain that LGBTI persons are, in general, reluctant to be open about their sexuality as they may face abuse, forced marriage, ‘honour killings’, humiliation, societal discrimination and harassment, including in the workplace, in the family and in accessing housing and healthcare. Some persons from a higher socio-economic background in urban areas may ‘come out’ to their family or friends and have access to the ‘underground gay scene’ at private parties or on social media, but if their sexuality is known, they may be exposed to violence or blackmail[3]
[2] Country Information Note: Pakistan Sexual orientation and gender identity and expression, United Kingdom Home Office, April 2022 at 2.4.7
[3] As above at 2.4.8
Although the UK Home Office country information note cautions that each case is to be considered on its facts, it is further reported that in general, a person living openly as LGBTI is likely to be at risk of treatment from non-state actors which is sufficiently serious by its nature and repetition, or by an accumulation of various measures, that it amounts to persecution or serious harm.[4]
[4]Country Information Note: Pakistan Sexual orientation and gender identity and expression, United Kingdom Home Office, April 2022 at 2.4.11
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has submitted his Pakistani passport to the Tribunal and the Department. On the basis of this, his oral evidence at hearing, and in the absence of any information to the contrary, the Tribunal is satisfied that the applicant is a citizen of Pakistan. The Tribunal assesses the applicant’s claims against Pakistan as his country of nationality and receiving country. There is no evidence that the applicant has a right to enter and reside in any other country and the Tribunal finds that he has no such right.
Is the applicant a refugee?
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
In this matter the Tribunal found both the applicant and [Mr D] to be straightforward and credible witnesses. They provided their evidence in a direct and responsive manner. It has remained consistent, and the documentary evidence that the applicant has submitted supports his evidence and claims.
The applicant spoke about his childhood in Pakistan, how he came to understand his own identity and the difference he felt from his peers. The early relationship he had with his high school friend [Mr B], his lack of awareness and exposure to others with a sexual identity like him and the excitement of his first real relationship with [Mr A]. The applicant was consistent that aside from [Mr B] and [Mr A] he did not openly discuss his sexuality with others in Pakistan and still has not been open with family members as he is confident that his lifestyle will not achieve any acceptance.
The Tribunal also found plausible the immature plans that he made for studying in Australia as [an Age] year old which was bound up with his desire to explore his relationship with [Mr A], not realising the distances between Sydney and Melbourne or the rigours of the study he proposed. The Tribunal also found the evidence of the applicant plausible as to how his relationship with his sexuality has progressed as he has been able to more openly explore his identity away from family and the Pakistani culture. The applicant spoke about his reaction to the ending of his relationship with [Mr A], and how this has impacted on his subsequent relationships.
It is noted that the applicant has delayed seeking protection. He arrived in Australia in June 2016 and his protection application was not lodged until March 2018. The applicant was also not studying during this time, and this was the purpose for which he had a visa entitling him to remain in Australia. On his evidence his awareness of prejudice and discrimination among the Pakistani community impacted his ability to openly discuss his situation with many friends he formed. He told the Tribunal that he did not understand that a refugee visa could apply to his situation, he believed that it was for boat people fleeing conflict. The Tribunal accepts his explanation that he was not aware that he could lodge a refugee claim prior to meeting his friend [Mr C], who has supplied a supporting statutory declaration. While the Tribunal acknowledges that there has been a delay in the applicant applying for a protection visa, it accepts that this application was made within a reasonable time once the applicant became aware of the opportunity to lodge a claim.
On the applicant’s evidence, the evidence of his supporting witnesses and documents and submissions before it, the Tribunal accepts that the applicant identifies as a homosexual and has identified as a homosexual since a teenager in Pakistan. It is accepted that he practices as a homosexual and is in a relationship with another male, [Mr D]. Both the applicant and [Mr D] gave separate consistent evidence about the formation of their friendship, the observance and socialisation with each other over the years while in different relationships and the beginning of their sexual relationship. They discussed activities that they now share together, their engagement with [Mr D]’s family and their tentative plans for the future.
The applicant’s evidence is that he has never had a relationship with a female, and if he returns to Pakistan he will not be able to be open about his sexuality and may be forced to marry. He maintains contact with his mother, she often raises with him the prospect of marriage and her expectation that at the age of [Age] years he should be considering such a commitment. The applicant has not told his mother about [Mr D] although he considers that his future is with him, and does not contemplate a time when this can be openly discussed. His brother is now studying in Western Australia, the applicant has met him once since he arrived in Australia and has not been open with him about his sexuality. The applicant told the Tribunal that he did not believe he could avoid this mother’s and his family’s expectation of marriage to a woman if he returned to Pakistan. He claimed that after so many years away it would be the expectation that he returns to live in the family home. He is the oldest son, and his father is deceased. They also had hopes he would step into the [business]. The applicant described his family as very traditional in their Islamic beliefs and that he received religious instruction prior to attending school and as a child would attend the mosque almost daily. The Tribunal notes the assessment of DFAT that gay men in Pakistan face a high risk of official and societal discrimination and a moderate risk of violence, [5] and the applicant’s resolute conviction that he could not inform his family about his sexuality is consistent with this information. The applicant feared the reaction of his extended family members, particularly his uncles who he described as very traditional. It is accepted that his lifestyle may be viewed by his family as bringing not only shame on the family but also the business. It is accepted that his extended family may wish to harm him to avoid this becoming known.
[5] DFAT Country Information Report, Pakistan, January 2022 at 3.105
The applicant told the Tribunal even if when he returned to Pakistan and was able to move away from his family he would be at risk in the wider community. He claimed that as he had become more comfortable with his sexuality in Australia, he did not think that it was something he could suppress or hide as well in Pakistan anymore. He claimed that news would spread fast within the community in Pakistan and they were quick to judge. He believed that he was at risk from conservative Muslims, not only extremists, because to be gay was a big sin and there was no one who would offer him protection. The Tribunal has considered this claim and the country information and it is satisfied that there is a real chance of serious harm to the applicant in Pakistan if he is openly gay there, or if he is discovered to be gay. It also accepts for the applicant to conceal or suppress his homosexuality would be to deny an essential part of his identity. The Tribunal is satisfied therefore that there is a real chance of serious harm to the applicant if he returns to Pakistan.
The Tribunal is satisfied that homosexual men are a particular social group in Pakistan in that they share a characteristic, particularly their sexual orientation, which distinguishes them from the rest of Pakistani society. The Tribunal finds that his homosexuality is the essential and significant reason for the harm that he is at risk of in Pakistan and that this harm arises from systematic and discriminatory conduct, in that it would involve deliberate and selective harassment.
The Tribunal is further satisfied that the applicant cannot turn to the authorities to seek protection. The Tribunal notes the country information that sexual activity between men is unlawful, and although this is rarely prosecuted, the information is that crimes against LGBTQI+ people often go unreported and that police generally take little action when they receive reports.[6] It further finds that the applicant’s fear of harm applies to all areas in Pakistan.
[6] Country Reports on Human Rights Practices for 2022 – Pakistan: US Department of State 20 March 2023
For the above reasons the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Pakistan, and that fear is based on his membership of a particular social group.
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.
Penelope Hunter
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 3927

24 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction