1917339 (Refugee)

The applicant, a national of Uzbekistan, sought a protection visa in Australia. The dispute concerned whether the applicant had a well-founded fear of persecution and if Australia had protection obligations towards him. The matter was heard by the Administrative Appeals Tribunal (AAT).

The Tribunal was required to determine if the applicant was a refugee within the meaning of the Migration Act 1958, specifically whether he held a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. A key issue was whether effective protection measures were available to the applicant in Uzbekistan.

The Tribunal found that the applicant, a man who has sex with men in Uzbekistan, had a well-founded fear of persecution. It reasoned that the characteristic of being a man who has sex with men in Uzbekistan constituted membership of a particular social group. The Tribunal was not satisfied that effective protection measures were available to the applicant in Uzbekistan, noting that the state was unwilling and unable to offer such protection. The Tribunal concluded that the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, and that this fear was based on a real chance of serious harm.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied section 36(2)(a) of the Migration Act, meaning Australia had protection obligations towards him.