1920870 (Refugee)
[2024] ARTA 751
•4 December 2024
1920870 (REFUGEE) [2024] ARTA 751 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Mohiuddin Ahmed (MARN: 0963102)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1920870
Tribunal:David McCulloch
Date:4 December 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 04 December 2024 at 11:06am
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – homosexual man – friend arrested and applicant wanted by police and authorities – fear of harm from mobs – vague and inconsistent claims and evidence – implausible account of start of first relationship – passport and unhindered departure – limited activities in Australia – authenticity of news article – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a citizen of Nigeria, applied for the visa on 24 January 2017. The delegate refused to grant the visa.
The applicant appeared before the AAT on 10 September 2024 at 2:00 pm to give evidence and present arguments. The AAT was assisted with the use of an interpreter in the Igbo language. The applicant at the commencement of the hearing indicated that the interpreter would only be needed if requested. During the hearing, the interpreter was used for a not insignificant period of the time.
The applicant attended a subsequent Tribunal hearing on 26 November 2024 at 9:30am. The Tribunal was assisted with the use of an interpreter in the Igbo language. The applicant at the commencement of the hearing indicated that the interpreter would only be needed if requested. During the hearing, the interpreter was used for a not insignificant period of the time.
The applicant was represented in relation to the review. The representative attended the hearings.
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. The Tribunal has before it the DFAT Country Information Report – Nigeria,3 December 2020, a copy of which was given to the applicant in the second hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The delegate’s decision indicates that the applicant arrived in Australia [in] November 2017 on a Visitor FA-600 visa which had been granted on 25 October 2016. The application for the protection visa was lodged on 24 January 2017.
The application form for the protection visa indicates the following information. The applicant was born on [Date]. The applicant speaks, reads and writes Igbo and English and he needs an interpreter for the interview in Igbo. The applicant is a Catholic. The applicant has never been married or in a de facto relationship. The applicant lists both parents and [siblings] living in Nigeria. The applicant is in contact with relatives outside Australia infrequently. He called his mother and elder brother soon after he arrived in Australia and during the Christmas period.
The applicant indicates that he was interviewed in connection with his Australian visa and indicated that he was coming to Australia for [an Event]. Other than transiting through [Country], the applicant has not travelled to other countries apart from Australia.
From birth until July 2015, the applicant lists living at three different addresses in Anambra and Nasarawa State. From July 2015 until May 2016, the applicant lists living at an address in [Location], Lagos State. From May 2016 until August 2016, the applicant lists living at an address in Aba, Abia State. From August 2016 until November 2016, the applicant lists living at an address in Akure, Ondo State.
The applicant lists completing secondary school in [Year]. From August 2008 until July 2014, the applicant studied and completed a course in [subject] at [University 1].
In listing employment, the applicant indicates that from June 2012 until July 2012, he worked as [an occupation 1] for a company in Lagos State. From August 2014 until July 2015, the applicant worked as [an occupation 2] for a [workplace] in Nasarawa State. From July 2015, he was supported financially by his parents and made job applications.
In answering the question in the application form as to why the applicant left Nigeria he refers to an attachment which provided as follows (unedited):
During my years of studies in [University 1], I was in a total love with a lady called [Ms A]. We had been lovers for about three years. We started having issues when I found a romantic text message on her phone from a man and we had met this man with her a couple of times. When I asked her about the man, she always insisted that the man was her relative, but she never previously mentioned about this man to me since we have been together. I was hoping that our relationship would end in a marriage until I started suspecting that she was cheating on me.
Things came to a head when on 18th of June, 2013, over as usual, I went to sleep at her place and discovered that this same man was there in her bed naked and she doesn't even want to give me any attention. I angrily left her house about 10pm telling her that it was over between us but within me I knew that I was heartbroken. On my way home the same night, I was being attacked and taken hostage by three groups of boys on my way home. They took me with other two boys to their house and forcefully had anal sex with us, they warned us not to disclose it to anybody or we would face death. I was completely devastated by this double tragedy and I felt like is not worth living anymore.
After the incident, I didn't know that one of the boys who raped us trailed me to my house when I was crying and running home. After that day, this boy, called [Mr B] came to me in my house, introduced himself and apologised for his involvement in their action. He saw that I was still very angry, sad, traumatised and sick, he went and bought me some pain relief medications, which I accepted and took and it had good effect on my situation. I thanked him for his help, though still upset.
Then he continued to visit me regularly and in that process he started telling me about gay and homosexuality. Initially, I was scared, frightened and reluctant to even listen to him. But later due to his cajoling and persistency as well as regular visits, I developed interest in discussing it with him. From there, he told me that practising it was easy and more enjoyable than with the opposite sex and also that gays support gays to the fullest and in any situation.
One day, he started touching me which I wasn't comfortable with on the first day, but on other days with his tactics, I started enjoying his touches and from there we started having regular anal sexual intercourse. And then became gay partners and enjoying each other secretly as we know that it is a grave offence in Nigeria to practice homosexuality. After our graduation from the university [in] July 2015, we both moved together to Lagos state to start a life on 7th of August the same year. He later moved to Benin City, Edo state in January 2016 after securing a new job there. All along, we lived our homosexual life secretly because of the Same Sex Marriage Prohibition Act signed into law by the Nigerian Government in 2014 with penalties of up to 14 years in prison and also we knew that the local securities and the mobs could take laws into their hands to punish whoever is involved in same sex act.
On 3" of May 2016, I travelled to Edo state to meet my partner, [Mr B], and also for the preparation of a party being organised by our gay member, [Mr C]. During the party [in] May 2016, we were not aware that someone had informed the police about the gay gathering. So the police and local groups invaded the place and arrested five people including our close friend, [Mr D]. Fortunately for me and my partner , we managed to escape. The following morning, I ran back to Lagos where I lived at [Address 1] Lagos state with my partner, [Mr B]. I later heard through the news that they further arrested one of us afterwards and that police were still searching for the other suspects being my partner and myself. Since then I started living a life of fear knowing that they must have asked my friends about me and my partner. After five days, I got a call from my neighbour named [E] that some group of police officers and some local security came to search for me in my home in Lagos state.
I couldn't return to my home again from then because they were constantly searching for me, so I ran from Lagos State to Imo state to hide in my friend's house whose name is [F] at [Address 2] Aba, Abia state while my partner ran to Nkpor, Anambra state. I told my friend, [F] that I couldn't secure a better job in Lagos that I would like to try to get a job in Imo state. From then I started receiving many strange calls asking me my location or where I slept. I stayed in my friend's house for over two months until when he found out the real reason why I left Lagos. He threw me out of his house saying that he didn't want any police case in his house and that if they found out that someone was harbouring a gay person that person might also face condemnation and the law.
So I ran to one of my old school mates' house called [Mr G], who lives at [Address 3] Akure, Ondo state who also happened to be a gay. During my stay with him, my father called me and said that some group of police men came to our house and searched for me and that they reported me as a gay. I admitted to my parents that I am a gay. My father was disappointed and furious, saying that I had brought a shame to our whole family, and then my father told me that he would make sure that he found me and handed me over to the authorities or take law into his hand by inviting some mobs to assist in exterminating my life. My friend, [Mr G] advised me to find a way to move out of the country and seek for protection from the government overseas to save my life and also in order not to put him in trouble.
Later, he introduced me to a man, called [Chief H], who promised to assist me to get an agent that would help me move out of the country. [Chief H] introduced me to an agent named [Mr. I] who based in Abuja through a phone call. He charged me one million two hundred thousand naira only (#1200000) which was about AUD5200 but later we agreed on a bill of eight hundred thousand naira only (#800,000) which was about AUD3500. [Mr. I] requested for my international passport and I told him that I lost it in the process of running for my life. He advised that I should quickly get another passport, and then he invited me to Abuja and took me to Nigerian Immigration Office where I obtained another passport. My friend scanned the international passport, two of my passport photographs and sent them to him with deposit of one hundred thousand naira only (#100000) which was about AUD430. He invited me to Abuja [in] September, 2016 for the submission of my visa. I travelled to Abuja overnight and he took me to where I submitted the documents which he prepared for the visa in the morning then I went straight back to Akure.
After four weeks, he informed me through my friend that my visa was out and that I should pay the remaining bill for collection which I did. My friend then went to Abuja and collected the visa for me. I also asked him for help to purchase a flight ticket which he did at a cost of four hundred and ninety nine thousand naira only (#499000) which was about AUD2200. He purchased [Airways] flight ticket for me with departure date of [Day 1] November, 2016 from Lagos and arrival date of [Day 2] November, 2016 in Melbourne. I left Nigeria on [Day 1] of November, 2016 and arrived Melbourne International Airport on [Day 2] of November, 2016.
After the [event], I met one African man whom I asked about where and how I can locate a tourist site in Australia, he told me that I should board a bus or train to Sydney to see the Opera House, Harbour Bridge or Taronga Zoo etc.
When I got to Sydney central station on [Day 1] of December, 2016, I approached an African man named [Mr. J], whom I asked about any African Church around for worshiping. He invited me to a church named [Church 1] in [Suburb 1] with direction on how to locate the church. When I got to Opera House in the afternoon, I found out that I lost my wallet with all my money which made me to sleep at the train station for two nights.
On Sunday morning ([Day 2] of December, 2016), I tried and located the church at [Suburb 1]. I told the church pastors and the members how I lost my wallet with all my money and they all pitied me especially when I told them that I don't have a place to sleep. I decided not to tell them my purpose in Australia because I believe they might not accept to help with shelter for being a gay. [Mr. K] offered me to come and temporarily stay with him and his family while I holiday here in Australia. I also got help from other church member too until today as I have been worshiping with them.
I decided to apply for a protection visa to the Australian Government because I believe that I will get the much needed protection here without the Nigerian Government, the mobs nor the local security in Nigeria, being able to track me to prosecute me or to kill me because I am a gay. I hope that the Australian Government will protect me.
In answer to the question in the application form as to what the applicant thinks will happen to him on return to Nigeria, he indicates that he will be killed by mobs or arrested by police. When asked about the harm he has experienced, he indicates that he was forced to leave his home, slept on the street with police and a mob searching for him to persecute him for being gay. The applicant did not seek help for the harm because no one will help due to attitudes towards homosexuality. Police and mobs have already started searching for the applicant.
In answer to the question as to whether the applicant ever tried to relocate, the applicant indicates that he moved to a friend’s house in Abia State but he later threw the applicant out of the home when he found out that he was gay. The applicant also moved to [Mr G]’s home who advised the applicant to leave the country to save his life and not to put him in trouble. Authorities cannot protect the applicant because of opposition to homosexuality and its illegality. The applicant cannot relocate.
In the Departmental form in relation to applicant details, the applicant ticks ‘yes’ to the question as to whether he has ever been subject to an arrest warrant or Interpol notice. The applicant provides further detail that he has been subject to an arrest warrant for being gay.
The applicant provided to the Department an internet media report from the website [URL] dated [January] 2017. It is headed ‘[Headline]’. It indicates that [in] December 2016, angry [mobs] beat up [a Mr BB]. It is indicated that this person escaped arrest with his partner, naming the applicant, [in] May 2016. The article refers to [Mr B] being detained by police but escaping from police custody. It indicates that six suspected gay gang members have been arrested by police [in] May 2016.
The Tribunal has attempted to access the website on which this article appears but there exists no current website accessible.
The applicant provided an additional written statement dated 3 September 2024. It repeats and provides further information as to factual claims for protection. It responds to issues in the delegate’s decision including findings and concerns as to the applicant’s credibility. It provides internet links and refers to the situation in Nigeria relating to mistreatment of the LGBT community.
The Tribunal notes that it is apparent from the delegate’s decision that the applicant had shown photographs to the delegate relating to gay activities of the applicant in Sydney. Those photographs were not on the Departmental file. In the hearing, the applicant indicated that he still had these photographs. The Tribunal requested that the applicant provide these photographs to it following the hearing.
The Tribunal notes the following from the interview with the delegate that took place on 7 June 2019.
The applicant indicated that his only employment in Nigeria was a placement while studying in [a work] Department which occurred sometime before he completed his studies in 2015. The applicant indicated that he completed a Bachelor of [Subject] with second-class honours. After finishing his undergraduate studies, he just spent time searching for work, which he could not get.
The applicant answers ‘no’ to the question as to whether he has ever had issues with the law in Nigeria. However, the applicant then indicates that after issues with authorities following a gay party from which he escaped, the authorities were looking for him. This happened [in] May 2016 in Edo State.
The applicant is asked when he realised he was gay. He indicated that one night during his university years, he discovered that his girlfriend was cheating on him. The applicant then was accosted by a number of boys who took the applicant to one of their homes and raped him. One of those who raped the applicant, [Mr B], came to the applicant’s house and kept visiting and asking for forgiveness. He tried to convince the applicant that being gay is better than having a girlfriend who cheats. Eventually, the applicant was persuaded to be gay. The applicant indicates that boys have more things in common and can play together.
The applicant is asked if he thought he was gay when younger and he indicates that he did not. The applicant is asked if he was ever attracted to women. The applicant responds that at school it was easier to relate to boys.
The applicant is asked what was going through his mind in terms of making the decision to connect with a person who had raped him. The applicant indicates that it was not an easy decision as it took a while as being gay is not common. The applicant referred to [Mr B] visiting regularly and asking for forgiveness. The applicant indicates that when he first arrived after the rape, he did not know it was one of the rapists knocking which is why he answered the door.
The applicant is asked if he had to go to hospital after the rape. He indicated that he did not but that [Mr B] had bought some medication for him.
The applicant is asked what the defining moment was in terms of him deciding to pursue a relationship with [Mr B]. The applicant responds that his girlfriend never called to apologise and that boys had offered friendship and it was better off being gay than having a girlfriend.
The applicant is asked if he and [Mr B] ever lived together. The applicant responds that they each have their own homes. They would talk on the phone regularly and meet five times a week either at school or at his place or go out drinking.
In terms of the problems from the authorities after a gay party, the applicant is asked how he knows that police were looking for him. The applicant indicates that other students at the hostel he was living at told him that police visited and that the applicant was not able to return to the hostel. He then left town for Aba where he went to stay with a friend for two months until the friend found out that he was gay and he was being looked for. He then ran to stay with another friend in Akure.
The applicant is asked about his relationships and gay activities in Sydney. The applicant indicated that although there are difficulties understanding his accent, he is accepted into the community. The applicant refers to attending Mardi Gras in 2017 and marching with [Church 2]. It is apparent from the interview that the applicant shows the delegate photographs of this but these photographs do not appear on the Departmental file.
The applicant refers to attending a candlelight vigil in 2017 in memory to those who were killed in the massacre in Orlando.
The applicant refers to a connection with someone called [Mr L] who he met on a social network. When asked if the applicant has pursued relationships, he refers to a person called [Mr M or MM], although this person lived in Melbourne. He had invited the applicant to visit but this did not happen.
The applicant is asked about attending gay bars. He refers to attending [a] hotel in Oxford Street and [a] hotel in [Suburb 2].
The applicant is asked about his gay social network. He refers to one friend and indicates that is not looking for other relationships and that they mostly meet in bars.
The applicant is asked if he is a member of any LGBT community groups. The applicant refers to just connecting through the [Social media] Mardi Gras page and that he had stopped his subscription to the [gay] internet dating site.
The applicant is asked if he dated anyone else in Sydney. He indicates that he has not apart from the one friend.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
Sexual Orientation and Gender Identity
[3.94] Although the Constitution offers general guarantees to the rights to life, privacy, association, assembly, dignity and freedom of expression, Article 15(2) does not include sexual orientation or gender identity as one of the grounds for which discrimination is prohibited. There are no laws explicitly protecting sexual minorities from targeted violence or discrimination.
[3.95] A number of federal and state laws criminalise same-sex sexual acts. Section 214 of the 1990 Criminal Code criminalises ‘carnal knowledge against the order of nature’ for men and women, carrying a maximum penalty of 14 years’ imprisonment; while Section 217 penalises ‘gross indecency’ for men with up to three years’ imprisonment. The federal Same Sex Marriage (Prohibition) Act (2014) (the SSMPA) imposes sentences of up to 14 years for individuals who enter into a same-sex marriage or civil union, and penalises ‘administering, witnessing, abetting or aiding the solemnisation of a same sex marriage or civil union’ with up to 10 years’ imprisonment. Article 5(2) of the SSMPA penalises public displays of same-sex attraction with up to 10 years’ imprisonment.
[3.96] In the 12 northern states that have adopted sharia, adults convicted of engaging in same-sex sexual activity may be subject to execution by stoning. DFAT is not aware of any cases in which such penalties have been imposed, although there have been some cases in recent years in which sharia courts have reportedly sentenced individuals convicted of same-sex activities to lashings.
[3.97] According to the US Department of State, the SSMPA effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender and/or intersex (LGBTI) rights, or being perceived to do so. In addition to the provisions mentioned above, Article 5(3) of the SSMPA provides for up to 10 years’ imprisonment for anyone who ‘registers, operates or participates in gay clubs, societies or organisations, or supports their activities’. LGBTI persons have reported increased harassment and threats against them in the years following the SSMPA’s passing. Human rights organisations have reported the SSMPA has become a tool used by police and members of the public to legitimise human rights violations against LGBTI persons, such as torture, sexual violence, arbitrary detention, extortion and violations of due process rights. LGBTI advocates have also claimed in some cases local authorities have used the SSMPA to deny members of the LGBTI community access to amenities and education.
[3.98] There have been a number of widely reported cases in recent years in which LGBTI individuals have been arrested on the basis of their perceived sexual orientation or gender identity. These include (but are not limited to):
· In January 2020, religious police in Kano state announced the arrest of 15 university graduates who were reportedly ‘planning a gay sex party’. A religious police spokesperson said those arrested had been transferred to a correctional centre to undergo reorientation programs.
· In November 2019, police in Edo arrested two women rumoured to be in a relationship and publicly declared a ‘war on lesbians.’
·In August 2018, police in Lagos arrested 57 individuals at a hotel party, subsequently charging them with public displays of same-sex amorous affection under Section 5(2) of the SSMPA. In December 2019, 47 of the men began trial, making them the first people to go on trial under the Act.
Media and LGBTI advocates have also reported cases in which police have arrested LGBTI individuals but released them without formal charges after paying a bond, thought in some cases to be a bribe.
[3.99] In-country sources report all socioeconomic groups in Nigeria hold negative views of homosexuality, which many consider to be alien to traditional African culture. According to a 2017 survey on lesbian, gay and bisexual rights in Nigeria, 90 per cent of respondents supported the introduction of the SSMPA, 90 per cent agreed Nigeria would be a better country without homosexuals, and 83 per cent indicated they would not be willing to accept a homosexual family member. Further, 56 per cent of respondents supported the view that homosexuals should be denied access to public services such as health care, housing and education.
[3.100] LGBTI advocacy groups report that individuals accused of homosexuality face a risk of losing their jobs, being compelled to leave their village or neighbourhood, or being subjected to violence which has in some cases been lethal. LGBTI individuals have reported feeling unsafe accessing health care due to the fear of discrimination from nurses and doctors should their sexual orientation or gender identity become known, including being reported to police. In order to avoid societal isolation and discrimination, members of the LGBTI community report feeling compelled to take steps to hide their sexuality. Both gay men and lesbians face considerable societal and family pressure to enter into heterosexual marriages. DFAT considers credible reports of gay men being ostracised and forced out of their family homes once their sexual orientation had become known.
[3.101] Despite the operating restrictions imposed by the SSMPA, several NGOs have provided LGBTI groups and individuals legal advice, training in advocacy, media training and health services, focusing primarily on HIV and AIDS work. One human rights NGO launched a mobile application in 2017 called ‘Quickcare’ to help LGBTI people access health services and other LGBTI-friendly facilities across Nigeria. Authorities have largely not impeded the work of these groups. In 2018, however, a group called Lesbian Equality and Empowerment Initiatives lost their appeal challenging the refusal of the Corporate Affairs Commission to register them under the Companies and Allied Matters Act, with the judge ruling their name was in breach of the SSMPA.
[3.102] DFAT assesses LGBTI individuals face a high risk of legally sanctioned official discrimination and targeting under federal and state law, and a high risk of societal discrimination and violence. These risks increase in the northern states in which sharia applies. [1]
[…]
PREVALENCE OF FRAUD
5.56 Although the Penal Code and the Criminal Code criminalise fraud and the falsification of documents, Nigeria has experienced high rates of document fraud in the past. In addition to birth certificates, death certificates and marriage certificates, immigration officials report other common documents subject to the possibility of falsification include bank statements, health insurance certificates, invitation letters, letters of introduction and letters of employment from multinational companies. Such fraudulent documents are often used to obtain passports: in June 2017, the Police Special Fraud Unit reported the Italian Embassy was sending to them an average of 50 Nigerian passports obtained through the use of fraudulent documents monthly.
5.57 Those seeking illegal passports may include those who have been deported and had their passports seized, those seeking asylum, and those engaging in illegal overseas labour (such as prostitution) through agents. Nigerians may reportedly also seek fraudulent passports from countries such as Ghana, Senegal, Guinea and Mozambique.
5.58 In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS offices may also enable the fraudulent production of genuine passports.
5.59 Nigeria has established institutions and strengthened procedures to combat the risk of fraud. Banking system controls, for example, have facilitated the growth of electronic transactions and widespread use of mobile app funds transfer. Nigeria is gradually strengthening its national identity system and biometrics. The NIS has a forensic laboratory for the examination of travel documents and monetary instruments, and the Nigeria Police Force has established a Special Fraud Unit to combat fraud, which actively investigates and prosecutes suspects. DFAT understands, however, that very few cases have thus far resulted in convictions.[2]
5.60 DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.
[1] DFAT, Country Information Report – Nigeria, 3 December 2020, para [3.94]–[3.102].
[2] [2] DFAT, Country Information Report – Nigeria, 3 December 2020, para [5.56]-[5.59]
A submission provided after the second hearing contained news reports, articles and documents which are submitted as indicating persistent violence against LGBT people in Nigeria.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that “in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The Tribunal has numerous credibility issues, including significant ones, with the applicant’s claims.
Firstly, the applicant has not been consistent in terms of whether [Mr B] ever lived with him. In the applicant’s initial written statement, he indicates that [Mr B] moved to live with the applicant in Lagos when the applicant finished his studies and lived there for approximately six months. In the first hearing, the applicant indicated that he could not specifically recall how long [Mr B] lived with him in Lagos but perhaps it was around a year.
In contrast, in the delegate interview, the applicant indicated that he never lived with [Mr B]. They lived in their separate homes.
In response to this inconsistency put to the applicant in the first hearing, he responded that he had misunderstood the delegate’s question. In contrast to this, in the written statement provided by the applicant prior to the first hearing, he provides a different explanation for the inconsistency. He indicates that he indicated in the interview that he stated that [Mr B] did not live with him because they had only lived together for about five months.
The Tribunal is not satisfied that living together for five months would not be considered living together resulting in the answer the applicant provided to the delegate. The Tribunal is not otherwise persuaded that the applicant misunderstood the question that was asked of him by the delegate.
The inconsistency is undermining of the applicant’s credibility.
Secondly, there is an inconsistency as to when the applicant’s parents found out he was gay. In written claims, it is indicated that his parents found out he was gay when police raided the home after the applicant being looked for by authorities following the police raid at the gay party in May 2016. In contrast, in the delegate interview the applicant indicated that it was from Australia that he told his mother he was gay. In response to this issue in the first hearing, the applicant indicates that this later evidence was a product of a misunderstanding.
In the context of the applicant’s overall evidence and credibility issues, the Tribunal has doubts that the evidence in the interview was the product of a misunderstanding as opposed to untruthful core claims for protection.
Thirdly, the issuing of a Nigerian passport to the applicant on [in] 2016 makes it unlikely as the applicant claims that he was wanted by Nigerian authorities at that point in time. The applicant has claimed, corroborated by the media report referred to above, that from the police raiding of the gay party in May 2016, the applicant was being hunted for by authorities.
The Tribunal put to the applicant in the first hearing that if this were true, it is unlikely that he would either have been issued passport by authorities after this point or that authorities would not have located the applicant due to being alerted to him because of his approaching authorities to issue the passport.
In response, the applicant indicated that the fact of his being issued the passport and lack of being found by authorities was because it was only at a local level, as opposed to a national level, that he was being looked for.
The Tribunal does not accept this explanation because on the applicant’s evidence, about a month after the May 2016 gay party, authorities visited his parent’s home in another state looking for the applicant.
The issuing to the applicant of a passport in [2016] without apparent difficulty is undermining of the applicant’s claims that he was wanted by authorities at this point.
Fourthly, the applicant has been inconsistent in terms of whether [Mr B] returned with him to Lagos when they escaped from the police raid on the gay party in May 2016. The applicant’s initial detailed written claims make specifically clear that [Mr B] returned with him to Lagos for a period. In contrast, in written claims, it is indicated that [Mr B] escaped the party on his own and that he and the applicant lost touch.
In response in the first hearing, the applicant initially indicated that he did not specifically state that [Mr B] returned with him to Lagos. The Tribunal read to the applicant an extract from his statement that makes clear he claims that he did. The applicant then indicated that what he meant to say was that [Mr B] had come to Lagos after the applicant had already left. He indicated that the way he wrote his claims is a mistake.
The Tribunal is not satisfied as to these explanations and considers the inconsistency is undermining of the applicant’s credibility.
Fifthly, the applicant has not been consistent in terms of how long he remained in Lagos after he escaped from the raiding of the gay party in May 2016. In the first hearing, the applicant indicated that he returned to his home in Lagos for less than an hour to get his things and then fled to another state.
The Tribunal put to the applicant that his initial written claims make it clear that he remained in Lagos for at least five days until neighbours told him that police had been looking for him and his home.
In response, the applicant indicated that he meant that it was five days that he spent travelling between states.
The Tribunal is not satisfied that this explains the inconsistency which is undermining of the applicant’s credibility.
Sixthly, further to the above issue, in the first hearing, the Tribunal had asked the applicant as to key events that happened in the period after he fled the gay party in May 2016. The applicant responded that authorities came to his parent’s home looking for him.
Tellingly, the applicant did not provide evidence indicated in written claims that authorities came to his home in Lagos five days later as told to the applicant by a neighbour. This inconsistency is undermining of the applicant’s credibility.
Seventhly, the applicant in the interview gave evidence that did not make sense in terms of its timing as to authorities looking for him after the raiding of the gay party in May 2016.
In that interview, the applicant indicates that authorities were looking for him the hostel at which he lived. He was told this by students over the phone. The Tribunal put to the applicant that this does not make sense as the applicant was not living in a student accommodation and that time but had moved to Lagos. In response, the applicant indicated that he had never said that he was told by students that authorities were looking for him.
The recording of the delegate interview indicates that he did which is undermining of the applicant’s credibility.
Eighthly, there is inherent implausibility that the applicant would form a relationship that lasted approximately three years with an individual who had raped him. In response to this issue in the first hearing, the applicant indicated that this was because [Mr B] was constantly thinking and advising the applicant that it was better to be gay. The event caused the applicant to understand who he really was.
The fact that something is implausible does not mean that it not happen. Nevertheless, the scenario painted by the applicant that he formed a relationship with an individual who raped him is highly unlikely. This is not a determinative credibility concern but is considered cumulatively with other more direct inconsistencies.
Ninthly, the applicant’s explanations in the interview with the delegate for deciding to enter into a homosexual relationship with [Mr B] did not ring true to the Tribunal in terms of drivers of sexuality. The delegate explored with the applicant this issue at length. The applicant’s main responses as to why he decided to enter into a same-sex relationship was the fact that [Mr B] was constantly apologising for what he did and was able to persuade the applicant that it was better being gay. The Tribunal put to the applicant that in the interview with the delegate, the applicant’s main explanations for deciding to enter into a same-sex relationship were driven by rationality and logic. The Tribunal indicated that this did not make sense to the Tribunal as drivers of sexuality were physiological not rational or intellectual.
In response, the applicant indicated that what had occurred to the applicant, namely the rape, made the applicant know what he is.
The Tribunal acknowledges the complexity of sexuality and its drivers. Again, this is not a determinative adverse factor but the focus of the applicant on being persuaded to be gay by rationality and logic did not have a ring of truth to the Tribunal, particularly in the culture of Nigeria where homosexuality is significantly reviled.
Tenthly, the applicant’s evidence as to expression of his sexuality in Australia is limited, with little corroborative evidence and an inconsistency in relation to his claimed relationships in Australia.
In the first hearing, the applicant indicates that he has had two main relationships in Australia, the first with [Mr M]. [Mr M] lived in Melbourne. They met on [a gay] dating site. The applicant indicated that he travelled once to Melbourne to visit [Mr M] and that on another occasion [Mr M] visited Sydney to see the applicant. This relationship lasted for over a year.
The applicant indicated that his other relationship was with [Mr L] who he met in 2023 at [a] Hotel. They were in a relationship for about six months. He cannot recall [Mr L]’s surname. He was employed as [an occupation 3]. He was English. They would go to bars together and other events, such as African festivals.
The applicant indicates that apart from these two relationships, he only otherwise has had casual encounters with men.
The Tribunal asked the applicant as to whether he had gay friends. The applicant indicates that he has only one gay friend called [Mr N]. They met at the same workplace doing a shift together. They go out together, including to Oxford Street, as well as other events. The applicant indicates that he will go out weekends when he is not working.
The applicant indicates that he has known [Mr N] for not more than a year – perhaps around six months.
The applicant indicated that while he met [Mr M] on the gay dating site, he stopped using dating sites after meeting him. The Tribunal questioned as to why the applicant stopped this method of connecting with gay men. In response, the applicant indicated that it is better for him to connect with gay men in bars directly.
The Tribunal indicated to the applicant that given his time in Australia and two claimed same-sex relationships, it would expect there would be written communications and an online presence that would be available to corroborate the relationships and their social life. The Tribunal noted that the applicant may wish to consider providing a written statement from his gay friend [Mr N] corroborating the applicant’s sexuality and their activities in Sydney.
The Tribunal provided the applicant a period following the first hearing to provide corroborating evidence that it would consider to substantiate his claimed sexuality. In response, the applicant provided photographs. There are photographs dated 5 March 2022 and 25 February 2023 which show what is clearly the Sydney Mardi Gras parade. Other photographs are provided of what also appears to be the Mardi Gras parade and various photographs of the applicant photographed together with others. There is a photograph of what looks to be a candlelight vigil.
The applicant also provided screenshots from a mobile phone text message correspondence between who would appear to be the applicant and the person named [Mr M or MM]. 10 pages of screenshots are provided. Dates indicated in some of these conversations are March 2019 and 29 March 2019 albeit that other conversations provided may be on different dates with dates not indicated. Aspects of the conversation from the perspective of [Mr M or MM] indicate from his perspective a fondness for the applicant including comments that the applicant is a ‘sweet man’. It is apparent from the conversations that [Mr M or MM] lives out of Sydney and that he travelled to Sydney on one occasion with another person and met up with the applicant. [Mr M or MM] expresses the wish that the applicant visit him, albeit that none of the conversations would suggest that the applicant has visited [Mr M or MM].
The submission attaching these and other documents makes reference to the genuineness of the applicant’s relationship with [Mr M/MM] and the genuineness of his involvement in LGBT activities in Sydney. In relation to the applicant’s relationship with [Mr M/MM], this is submitted to be one of the few moments in life where he experienced genuine companionship and acceptance. The relationship provided him emotional support while he navigated immense challenges associated with living as a gay man. While the relationship eventually ended, his connection with [Mr M/MM] was a significant part of his identity and personal history.
The submission provided following the first hearing indicates that the applicant is unable to provide a written statement from his gay friend/coworker, [Mr N] as he is not willing to provide such statement due to his privacy concerns.
In the second hearing, the applicant reiterated his relationship with [Mr M or MM] who he confirmed he visited in Melbourne. The Tribunal noted to the applicant that none of the text message correspondence between the applicant and this person suggest the applicant met him in Melbourne. In response, the applicant indicated that he looked for text messages establishing this but could not find them. The applicant indicated that they communicated in relation to the visit by phone.
The Tribunal has very significant concerns that if the applicant had visited this person Melbourne that there would not be text message or other phone/online correspondence relating to the visit in light of clear significant text message conversation between the two on the basis of the messages provided to the Tribunal.
In the second hearing, the Tribunal asked the applicant in relation to other relationships in Australia apart from [Mr M or MM]. The applicant thought about this for a period before indicating that they were not relationships other than very casual relationships. The applicant indicated that there were not other relationships that lasted for more than a few weeks.
The Tribunal put to the applicant that in the first hearing, he had referred to a six-month relationship with someone called [Mr L]. In response, the applicant indicated that he was just friends with this person and that they had gone to Mardi Gras together.
The inconsistency between the two hearings as to whether or not the applicant had a six month relationship with [Mr L] is undermining of the applicant’s credibility.
The Tribunal also put to the applicant that it had concerns that, albeit that there are romantic comments from [Mr M or MM] to the applicant in the text message correspondence, there is nothing that would suggest they were in a relationship for a year.
In the hearing, the applicant indicated that he asked his work friend [Mr N] to provide a supporting statement but he had ultimately declined to do so for personal reasons.
The applicant in the second hearing referred to his same-sex activities and connections formed in Australia. The Tribunal reiterated the scant nature of evidence of the applicant genuinely being involved in same-sex activities or relationships in Australia in terms of online evidence or corroboration from third parties.
100. The Tribunal maintains significant concerns about the thinness of the applicant’s evidence and lack of corroborative evidence of being involved in same-sex activities or relationships in Sydney. This is compounded by the direct inconsistency in the applicant’s evidence as to whether he was or was not in a six-month relationship in Australia with someone called [Mr L].
101. Before assessing these credibility issues cumulatively, the Tribunal notes and has taken into account submissions provided on behalf the applicant after the first hearing.
102. The submission reiterates some of the factual claims and provides explanations for various inconsistencies and issues with evidence identified in the first hearing. There is an indication that the trauma suffered by the applicant has affected his ability to give consistent evidence, including to the delegate, to explain various inconsistencies. The Tribunal notes in this respect at the commencement of the first hearing, it asked the applicant if there are any issues that might affect his capacity to give evidence. In response, the applicant indicated that there were not.
103. The submission indicates that the lack of documentary evidence is a product of the applicant having to destroy all evidence in Nigeria due to the risk of arrest. It is indicated that although the applicant provides financial support to his mother and siblings in Nigeria, his father has disowned him due to his sexual orientation.
104. The Tribunal, at the end of the second hearing, put to the applicant overall concerns in relation to his credibility. It noted the very significant credibility issues that have been put to him in terms of his claims in Nigeria. It noted the thinness and inconsistency in evidence as to claimed same-sex activity and relationships in Australia.
105. It indicated to the applicant that the Tribunal could form the view that he has engaged in same-sex activities in Australia and formed a connection with [Mr M or MM] as a means of building a foundation for untrue claims of protection based on sexuality. The Tribunal also put to the applicant that it could form the view, including in light of DFAT information as to the prevalence of fraud in Nigeria, that the media article from Nigeria that has been provided indicating that the applicant was a person of adverse interest as a result of attending a gay party has been fraudulently constructed.
106. In response, the applicant indicated that if he had known the extent of evidence that would be required by the Tribunal, he would have recorded situations better. The applicant refers to not being boisterous with social events and taking precautions. The applicant reiterates his claimed genuine involvement in same-sex activities in Australia.
107. The Tribunal considers the credibility issues identified cumulatively taking into account all of the applicant’s and representative’s submissions. The Tribunal, considering all concerns, is not satisfied that the applicant is a truthful or credible witness. The Tribunal is not satisfied that the credibility defects are cumulatively explainable as a product of trauma suffered by the applicant which created hurdles for him in giving evidence.
108. The Tribunal is not satisfied that the applicant became gay as a result of being persuaded to be so by an individual who had raped him. The Tribunal is not satisfied that the applicant was in a relationship with this person. The Tribunal is not satisfied that the applicant attended a gay party in Nigeria causing him to be wanted by police or being looked for by mobs. The media article provided seeking to corroborate this is not considered to be genuine by the Tribunal and does not overcome the cumulative impact of the credibility concerns identified. The Tribunal is not satisfied that the applicant relocated to different places within Nigeria to escape harm from authorities or a mob who were looking for him.
109. The Tribunal is not satisfied that the applicant has genuinely been in same-sex relationships in Australia or been involved in same-sex activities for the reason of him being genuinely gay. The Tribunal, given all the evidence, considers that the applicant has had some involvement in same-sex activities and connected with potentially gay individuals to provide an untruthful foundation for a protection visa based on sexuality.
110. The Tribunal is not satisfied that there are individuals or authorities in Nigeria who have any adverse interest in the applicant as a result of him attending a gay party or for other reasons. The Tribunal is not satisfied that the applicant would return to Nigeria as a gay man which would result in him facing a real chance of serious or significant harm as a result of being an openly gay man. The Tribunal accepts on the basis of the independent evidence that, generally speaking, out gay men in Nigeria face a real risk of serious or significant harm.
111. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk of him suffering significant harm.
112. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
115. The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
MemberDates of hearings: 10 September 2024 and 26 November 2024
Representative for the Applicant: Mr Mohiuddin Ahmed (MARN: 0963102)
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.
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