1917339 (Refugee)

1917339 (Refugee) [2024] AATA 4416 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Levingston (MARN: 5511612)
CASE NUMBER:  1917339
COUNTRY OF REFERENCE:                   Uzbekistan
MEMBER:Mark Oakman
DATE:24 September 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 24 September 2024 at 11:41am
CATCHWORDS
REFUGEE – Protection Visa – Uzbekistan – sexuality – membership of a particular social group – men who have sex with men in Uzbekistan – there are not effective protection measures available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 on 12 June 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 Uzbekistan, applied for the visa on 19 November 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 28 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Mr A, by MST video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbek and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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 (DFAT) 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 is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Receiving Country
The applicant provided a copy of his Uzbekistan passport. He stated in his protection visa application that he was a citizen of Uzbekistan and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Uzbekistan. Uzbekistan is the receiving country for the purpose of this assessment.
Migration history
The applicant arrived in Australia on [date] August 2015. He lodged an application for a protection visa on 19 November 2015.
Background
According to information given by the applicant in his protection visa application and at the hearing, he is [date] years old and was born in Samarkand, Uzbekistan. He married in 2002 and he and his wife have four children. His wife and children continue to live in the family home in Samarkand. He sends money regularly to his family in Samarkand. His parents now live in [a country]. He has a sister living in Samarkand and a brother who lives in [a country]. He is Tajik and Muslim. He reads, writes, and speaks Uzbeki, Tajik, and Russian.
He completed secondary schooling in Uzbekistan and worked as a [occupation] in Uzbekistan from 1993. He has worked in Australia, including working for the last three years as a [sub-contractor].
Evidence before the Department
The applicant lodged his protection visa application on 19 November 2015. His protection claims were set out in a statutory declaration dated 27 January 2016. He provided supporting witness statements from a friend, Mr B, dated 25 January 2016 and from his brother, Mr C, dated 22 January 2016. He subsequently provided supporting letters from his psychologist and his psychiatrist, dated 29 August 2016 and 21 February 2017, respectively.
The applicant attended an interview with the delegate on 11 June 2019.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 30 June 2019.
The applicant’s representative provided submissions to the Tribunal dated 9 January 2023.
On 21, 22 and 26 August 2024, the Tribunal received emails from the applicant’s representative containing further supporting material, as follows:
·Statement from the applicant dated 15 August 2024.
·Witness statement from Mr A dated 21 August 2024.
·Copies of Mr A’s Uzbekistan identification.
·Mr A’s Uzbekistan divorce certificate dated 25 August 2016, with English translation.
·Three summonses issued by the Uzbekistan Ministry of the Interior, dated 16 December 2015, 18 February 2016 and 23 March 2016, with English translations.
·A further copy of the 9 January 2023 submissions.
In the applicant’s statement dated 15 August 2024 he said:
“1. I am the Applicant in proceedings [before the AAT].
2. I have been in a long term relationship with [Mr A], [Mr A’s date of birth], we have known each other since childhood and until puberty, since he lived not far from me at [stated address].
3. My relationship with [Mr A] is very close and included an intimate sexual relationship and including an intimate relationship. We have an exceptionally close homosocial relationship, surpassing the level of ordinary male friendship and distinguished by a particularly high level of emotional closeness.
4. I have known [Mr A] since about 1992, and we were about [age]-[age] years old. But our sexual relationship began at [age]-[age] years old. We were always together as close friends. but we always tried to appear to people only as friends but whenever we had the opportunity, we were always together and had sex together.
4. We arrived and went into the house and it was hot there and we opened the window and were having sex. It turns out that some neighbour was interested in all this, since my car was parked in front of the house, and he was watching us and keeping an eye on us and he saw all this, and called his friends there. We did not know that the neighbour had seen us engaged in his intimate relations.
5. Suddenly they broke down the door and went into the house and saw us. And immediately began to beat us, mocked us as best they could, there were six of them. We did not know who they are. But as far as we know, they live in that village and were the friends of the neighbour.
6. We tried to explain, they did not even listen to us. Then they called the police, the police arrived, there were two of them, they rounded us up. They took us to the station, [and] locked us up. The policemen began to interrogate us and began to beat us with a baton and mocked us. They said that we were finished and would be imprisoned for at least 5 years. We begged them not to beat us, we were scared, in pain, we were afraid that we would be killed now. That is how our relationship with [Mr A] was revealed.
7. Then these policemen demanded money from us, five thousand dollars each. And they said that they would let us go and no one would recognize us and they would even make those people who were with us so that they would also forget about us. And we agreed, but they already knew where we lived, since they had already interrogated our addresses. They let us go so that we would bring them money.
8. We went out and went to the ladies for money. It was already evening, I went to the ladies to take the money and [Mr A] and I went back to the police, they were waiting for us. We gave the money and went back home. And at home they started asking me, they saw that something had happened to me, I was all beaten up. I didn't tell anyone anything and went to bed. Then the next day my wife said why I took a lot of money and went out to the bistro. It turns out my wife noticed how I took money from the house. I didn't even know how to explain everything to her.
9. I'm a fool, what have I done, now I didn't know what to do. I started lying to my wife that I had a fight with some guys on the street, but she didn't believe me and she went to the local police officer. The police officer came and then took me to his place at the [named] police station, on [named street]. He also started interrogating me. He said what happened?
10. I said nothing serious, I had a fight with some guys on the street and we got into a fight. He said are you going to write a statement? I said no. But this police officer wasn't aware of the matter and let me go.
11. I went home. But my wife and parents suspected that something was wrong with me, and that something serious had happened. For about a month of our life passed in fear. Then about a month later, these policemen who took money from us came to my house, they were in civilian clothes, and to my [Mr A]. They said to come to their police station. We went to them, they demanded money from us, thousands of dollars, we then brought it and gave it to them. Then about 10 days later they demanded money again, thousands of dollars, we gave it to them, then a week later they demanded money again, thousands of dollars. And all this time, these policemen constantly promised us that they would not beat us or touch us.
12. I decided to leave the city somewhere for a while. And [Mr A] said maybe everything will work out, and he also had a business that he could not quit at that moment. And we decided to grow apart for a while. And I went to [Country 1] on a contract to work on September 3, 2014, I thought when I was not in Samarkand they would forget maybe. But when I was not there, these policemen came to my house. They said that I should urgently come to them or else everything would be bad. Everyone at home was scared. Then my parents called me that I should urgently come and sort things out. [Mr A] also called and said that the police had been threatening him as well that if I did not come they would put him in jail. I travelled from [Country 1] to [a city], where I borrowed money from an acquaintance. I then travelled back home.
13. On May 20, 2015 I went to their police station. They demanded money from me again. And they started beating me with a baton, I started to shout why are you torturing me, I was shaking all over. They said that if I try to leave somewhere again, they will find me anyway and put me in prison. Then everyone will find out everything about us. I begged them not to share this and promised to find the money. Then I called [Mr A] and we met and talked, decided not to give them the money, but to find a way to get rid of them.
14. [Mr A] had a friend who works in the prosecutor's office, we went to him for help. We were forced to tell him everything, we had no other options. We told him everything, he listened and listened to us, and immediately freaked out, started to yawn and then he said, you faggots are humiliating our country and religion; and I hope you that you die and were sent on your way.
15. After that, a day later everyone found out about us, my wife, parents, we all had a fight, my relatives were all in shock, what they heard about us. My wife left me and went to her parents. My dad wanted to kill me, but my mom stopped him and held him back, and wouldn't let him. My dad kicked me out of the house, I left the house on the street, then all the neighbours found out. On the street everyone was mocking me, abusing me, shouting "Tajik faggot," throwing stones, insulting phrases, I was ashamed, I didn't know what to do, I wanted to kill myself at that moment, and my children were running around scared and crying, I was looking at them and crying too, I humiliated my family and ruined my father's reputation.
16. Then I left the house and called [Mr A]. We met, we didn't know where to go, then we decided to leave Samarkand. And we went to Tashkent. We spent a week there, looking for help and shelter from friends, but it didn't work out for us. And we were so scared, and out of fear we took a ticket to [City 1].
17. We arrived in [City 1] on April [date], 2015. And we were looking for a place to stay and live. And we stayed in a hostel on [named] street. A few days later I called my mother, and my mother was just crying, said that she was in the hospital. And I thought about it and took a risk, bought a ticket back, thought I would try to find shelter there anyway. And my [Mr A] stayed in [City 1] and said that he was afraid and would not return. And I arrived in Samarkand on April [date], 2015. And I immediately went to the hospital to see my mother, and my mother said that I had come in vain, she was worried about me and said that everyone was looking for me, they could kill me. Then I did not know where to go, and went to the last resort of the city, found an old hotel left there.
18. Then I started looking for shelter, called all my friends whom I knew, but they already knew everything about me, no one wanted to talk to me, and then I found out from my mother that my relatives were looking for me, and my wife's own brothers, that they wanted to kill me. and those policemen who took money from me. These policemen threatened my parents and said that there would be a big problem if I didn't come to them. And I didn't know what to do, I was in shock, I already wanted to hang myself, I was ready to die. But at that moment I saw my children in my eyes, they were still little, and I thought, it's probably a little early for me to die, I need to somehow break out of this situation.
19. I remembered, there was a man named [Mr D] who sends people anywhere for money. This was my last chance. Everyone knows him in Samarkand. And in the evening I went to his house, he lived on [named] Street. I knocked on the door, and a woman opened the door. I asked where [Mr D] was and she said he was not there, he was in [City 1]. She asked did you want something? I said yes, I would like to go somewhere. Then she gave me a phone number. I then called him and said that I wanted to go somewhere! He said fly to [City 1] and we'll talk here. Then I called my mother and told her that I was leaving, we then met and asked for help, she cried and said take care of yourself son and gave me money.
20. I bought a ticket and arrived in [City 1] on May [date], 2015. Then I met with [Mr D], he said where do you want to go? I said I don't know where. He said now I have an option to go to Australia, it will cost 15 thousand dollars. I agreed and he took my details and said to wait for him to call. At that time I was looking for my friend [Mr A], I called his last phone number but it was unavailable. I went to the hotel where we stayed last time. But there they said that he left, but they don't know where. Then [Mr D] called on August 16, 2015 and said that he made a visa. And he said to bring money. I came to him and there were two more who at that moment were unknown to me. He said that we would fly in three, I gave the money, he gave us the travel documents and the visa documents, then we bought a ticket. And we arrived in Australia on August [date], 2015.”
In Mr A’s statement dated 21 August 2024 he said:
“1. My name is [Mr A], [date of birth], the following is the evidence that I intend to give in the above mentioned proceedings.
2. I have known [the applicant] since my youth and had a very close sexual relationship with [the applicant].
3. The last time I saw [the applicant] was in [City 1], unfortunately this is our fate. In fact, I am very afraid to write this statement, and I am writing this statement only because [the applicant] asked me to, I am risking my life by writing this statement.
4. I had to return from [City 1] in July 2015, since I could not find a safe place for myself there, in addition, the Police detained me there because I did not have a registration confirming my stay in [the country] and they deported me. When I unfortunately returned to Uzbekistan, I very much regretted that I returned back, and unfortunately that the consequences were so cruel for me. I was detained by border guards at the border at the airport in the city of Samarkand, and placed in a detention room. And after some time two policemen came in and immediately there and then hit me in the stomach, they took me away, took me to the police station and there they also hit me many times all over my body.
5. Then I was taken by Police to the doctors, gave me various tests and an AIDS test. The next day they started interrogating me, since the police knew me very well, since they had all my data, the police threatened to put me in jail, the police offered to pay them 10,000 dollars, otherwise they would put me in jail under Article 120 of the Criminal Code.
6. The police also forced me to cooperate in the search for wealthier homosexuals and my partner [the applicant]. Unfortunately, I did not have that much money, and when I told them that I could not pay them, and did not know where [the applicant] and other homosexuals were. They hung me from the ceiling in handcuffs, beat me severely, raped me with a baton, and raped me using bottles filled with water, hanging them in my genitals, wrapping newspapers around my genitals and setting paper on fire. Then, I was ready to die. And I spent the night there in the cold wet floor for two, I think two days, I don’t remember exactly.
7. I was out on trail and I was sentenced to 3 years in Prison for charges under under Article 120 of the Criminal Code, Besakalbazlyk (sodomy) Besakalbazlyk, that is, satisfying the sexual needs of men with a man without violence. Which is prohibited.
8. I say that I do not know how to live with the trauma caused by daily beatings and manifestations of hatred and contempt. While in pretrial detention, I was regularly subjected to violence by other prisoners, while the pretrial detention center staff did not pay attention to this. My days spent in the pretrial detention center "were the most terrible and disgusting in my life", and I also claim that upon arrival at the colony, I was beaten by the staff of the institution, who also tried to rape me with a truncheon.
9. I claim that if [the applicant] returns to Uzbekistan, he will face exactly the same consequences!”

The applicant appeared before the Tribunal in person on 28 August 2024 to give evidence and present arguments. Mr A also provided evidence to the Tribunal by MST video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbeki and English languages. Where relevant, the applicant’s and Mr A’s oral evidence at the hearing is referred to in my analysis below.
Analysis, reasons, and findings
The applicant said at the hearing that he left Uzbekistan because the police caught him and beat him badly, and said they would put him in jail, so he was forced to run away. He explained it was because he had an intimate relationship with Mr A, and they caught him and beat him badly. He confirmed he did not leave Uzbekistan for any other reasons than his sexuality. He fears that if he returns to Uzbekistan the police will catch him, they will beat him and put him in jail, because of his relationship with Mr A.
He confirmed he had been in a sexual relationship with Mr A. It had started when they were about [age]-[age] years old. The last time he was intimate with Mr A was in about 2014, when they were at Mr A’s holiday house. The neighbours called the police who took them to the police station where they were badly beaten. The last time he saw Mr A was in [City 1] in 2015. He lost contact with Mr A after he came to Australia and only recently (about one, one and a half, months ago) re-established contact when a mutual friend helped by providing Mr A’s contact number. The Tribunal asked about any other same sex intimate relationships, while he was in Uzbekistan. The applicant said he had had sex a few times with another named man, who he met during his army service in 1995 to 1996.
Mr A gave evidence by MST video link from Uzbekistan. He confirmed the details in his statement dated 21 August 2024 were true and correct. He said he had last seen the applicant in person in 2015 in [City 1] and that he had only recently re-established contact with him through another person. He confirmed that he and the applicant had been in a close personal. Sexual relationship. He confirmed that the incident he and the applicant had been caught in 2014 by the police at his holiday house, that subsequently he had been detained at the airport in 2015, and he went to prison for three years from 2015 as a result.
At the hearing the Tribunal also asked the applicant about what he had done to explore his sexuality while in Australia. He said when he first came to Australia, he had a short, intimate relationship with ‘Mr E’. Mr E was one of the people he travelled to Australia with through Mr D, and he and his travel companions, including Mr E, had initially shared a house together for about a month. He has had no other sexual encounters in Australia. He had tried to establish other intimate relationships but had not been successful. He spoke about attempting to establish close relationships with men he worked with, but those efforts never amounted to a relationship. Due to his limited English, he didn’t attend venues where me might otherwise be able to meet up with like-minded men. He also said that currently he was not making any efforts in this regard due to what he described as spiritual and emotional difficulties. He explained these problems were because of where his life was going - he had lost Mr A, lost his parents, lost his family, he doesn’t understand what to do in his current situation, and it had been this way since he was beaten by the police in Uzbekistan. The applicant also spoke of his current practices in relation to his sexual needs – that information is contained in the record of the proceedings and doesn’t require being set out in this decision.
In assessing the applicant’s evidence, the Tribunal is mindful of the difficulties often faced by applicants for protection, particularly those for whom some period has passed since they departed their country of origin, including factors such as recall problems, cultural communication issues, misunderstandings in interpreted material, or a lack of cohesive narration due to experiencing trauma or the passage of time. I am also mindful that when it comes to sexuality, each person is different, and their own lived experiences in relation to their sexuality should not be viewed in any preconceived or stereotypical fashion.
There is no DFAT country report available for Uzbekistan. However, the UK Home Office (UKHO) recently released a report on the situation for LGBTI people in Uzbekistan.[1] The UKHO indicates:
[1] UKHO, ‘Country Policy and Information Note Uzbekistan: Sexual orientation and gender identity or expression (SOGIE)’, July 2024.
·that actual or perceived gay and bisexual men are likely to face persecution or serious harm from the state.
·Article 120 of the 1994 Criminal Code, which criminalises consensual same-sex sexual conduct between men, is punishable by up to 3 years in prison. There are no legal protections against discrimination based on sexual orientation or gender identity; same-sex unions and adoption by same-sex couples are not legally recognised; hate crimes motivated by prejudice cannot be tried as aggravated offences. Despite claims by the authorities of non-enforcement, Uzbekistan continues to prosecute and imprison gay and bisexual men under Article 120 although official figures remain low.
·Uzbekistan has consistently rejected recommendations to decriminalise consensual same-sex relations between men during the past 3 UN Universal Periodic Review (UPR) cycles, citing religious and cultural values as well as public opposition. In 2020, the government stated decriminalisation was not being considered due to the need to combat HIV. In 2021, officials made discriminatory statements against LGBTI people, with one proposing deportation. A draft new Information Code prohibits ‘propaganda of unnatural relations’ in the media. During the 2023 UPR, Uzbekistan rejected 15 recommendations related to LGBTI rights, citing ‘generally accepted norms’.
·Police intimidation and exploitation against gay and bisexual men, exacerbated by Article 120, appears to be common, according to various reports and submissions by human rights organisations and advocacy groups. Police routinely threaten, detain, mistreat, and extort.
·Actual or perceived LGBT people are likely to face persecution or serious harm from non-state actors.
·Deeply negative social attitudes towards sexual orientation and gender identity exist, limiting freedom of expression for LGBTI people and leading to discrimination. Same-sex conduct remains taboo, particularly in rural areas where individuals face intense pressure to conceal their orientation to avoid community discrimination and family ostracism. Homophobic views are pervasive with many likening being gay to a contagious disease, leading families to seek ‘treatment’, including ‘conversion therapy’ and forcing LGBTI persons into secrecy or straight relationships.
·Young gay men face expulsion from their homes and societal rejection if their sexual orientation is revealed. According to the government in 2023, public opinion largely supports maintaining or increasing penalties for same-sex relations, reflecting entrenched societal and religious opposition in the majority Muslim population.
·Government agencies, religious representatives, and civil society members contribute to a culture of hate speech, increasing homophobia. Perpetrators of rights violations include relatives, neighbours, and acquaintances.
·A person who fears the state is unlikely to obtain protection. A person who fears a rogue state actor and/or a non-state actor is unlikely to obtain protection from the state. This is because, in general, the state is able but not willing to offer effective protection.
·LGBTI persons are hindered from accessing justice or reporting discrimination, as they risk facing prosecution under Article 120. This deters many from seeking help, leading to unreported crimes. Police officers themselves may perpetrate harassment, exploitation, or violence against LGBTI persons, including forced anal examinations.
·Given that homophobic attitudes are prevalent throughout the country there is unlikely to be any place in Uzbekistan to which an LGBTI person could reasonably relocate without making fundamental changes to their behaviour.
The applicant has provided a generally consistent narrative about his problems in Uzbekistan and his relationship there with Mr A. The Tribunal, unlike the delegate, also had the advantage of receiving evidence from Mr A that confirmed their relationship and the problems and harm they encountered as a result.
Given the consistency of the applicant’s evidence throughout the course of the protection visa application process and before the Tribunal and that the country information confirms the claimed incidents are entirely plausible, together with the corroborating evidence of Mr A, the Tribunal accepts that the applicant and Mr A had a clandestine, long term, intimate relationship in Uzbekistan. When that relationship was discovered, they were beaten first by neighbours around Mr A’s holiday house and then by the police. They were threatened and subject to extortion by the police. They suffered harassment and abuse by family, friends, and community members. After the applicant had fled to Australia, Mr A was arrested, subject to degrading conduct while detained, and sentenced to and served three years in prison.
The applicant has done very little to explore his sexuality in Australia, a country where, particularly in a large city where the applicant lives, he is otherwise free to do so. However, having heard the applicant’s evidence, I accept his representative’s oral submissions at the hearing that the applicant was involved in an intense, emotionally committed relationship with Mr A from his formative years and for a significant time. This has led the applicant to generally seek similar relationships in Australia, rather than casual encounters, and because he has been largely unsuccessful in doing so, his life in Australia may perhaps be best described as a sad and lonely one. The Tribunal accepts that this due to the applicant’s personal desires, preferences, circumstances, and mental state, rather than an indication that the applicant is not genuinely same sex attracted.
The Tribunal finds that the applicant is a man who has sex with men. The Tribunal accepts that, for that reason, he genuinely fears to return to Uzbekistan. Given the previous harm he (and Mr A) experienced in Uzbekistan, together with the country information from the UKHO about the situation faced by actual or perceived gay and bisexual men (that is, men who have sex with men), the Tribunal accepts that there is a real chance the applicant may be subjected to harm, if he returned to Uzbekistan now or in the reasonably foreseeable future, including significant physical harassment and physical ill-treatment of the applicant and deprivation of his liberty such as would constitute serious harm for the purposes of s 5J(5).
In considering whether the harm the applicant fears in Uzbekistan is for reasons of his race, religion, nationality, membership of a particular social group or political opinion, the Tribunal considers that it is for the reason of the applicant’s membership of a particular social group, being “men who have sex with men in Uzbekistan”. I consider that the group of “men who have sex with men in Uzbekistan” is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. The Tribunal is satisfied that the harm he fears is for reason of his membership of a particular social group for the purpose of s 5J(1)(a).
Additionally, the Tribunal finds that if the applicant were to conceal his identity as a man who has sex with men, he would be doing so to avoid the threat of serious harm.
The Tribunal accepts, based on the country information, that societal and government attitudes of hostility towards men who have sex with men in Uzbekistan are such that the real chance of persecution applies throughout Uzbekistan as a whole.
Further, the Tribunal is satisfied based on the UKHO report that the applicant would not be able to access effective protection from harm, given that the country information indicates that the Uzbekistan government and law enforcement officials are themselves often hostile to, an agent of persecution of, and able but generally unwilling to protect, men who have sex with men.
The Tribunal finds that the applicant is a refugee as defined in s 5H(1) of the Act. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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.
Mark Oakman
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 4416

24 September 2024

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Natural Justice

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Appeal