1933486 (Refugee)

1933486 (Refugee) [2022] AATA 4579 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Conrad Taylor
CASE NUMBER:  1933486
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Katherine Harvey
DATE:9 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 November 2022 at 4:51pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – membership of particular social group – woman with HIV perceived as sex worker or drug user – access to and standard of healthcare – social stigma and discrimination, and no family support – mental health – ability to subsist – credible presentation and evidence – country information – no effective state protection and treaty right to enter and reside in other countries limited on same grounds – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (4), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age 1]-year-old woman from the Federal Republic of Nigeria (Nigeria) who arrived in Australia on a student visa in February 2014. Her application for a protection visa was received on 7 April 2016.
Claims
The Legal Services Commission of South Australia assisted the applicant prepare her application, that included a Form 866B and C and a certified copy of the applicant’s Nigerian passport. In a statement attached to her protection visa application, the applicant made the following claims.
She has been diagnosed as HIV positive and, as a result, her family has rejected her and does not want her to go back to Nigeria. Her brothers have stopped communicating with her. Only one sister is in touch with her. They want her to remain in Australia and continue schooling until she dies. They do not want the curse and sickness transferred to their children and other relatives. They do not want to face the stigma related to HIV/AIDS in the community because the health care centres will eventually disclose her status to their friends and others to take precaution of their lives. There is no privacy in Nigeria. If you go to the hospital, they will tell others that you have HIV without any fear, and they think it is a way of protecting their friends and family from HIV.
HIV testing is required for jobs in the private sector and in government and if you have HIV you won’t get a job. Even though there are laws about this, no one obeys them. People don’t believe in the laws and they are more concerned about sharing information about HIV sufferers so that they can protect their families from harm. There is also a high level of corruption, so people are prepared to sell information about others if there is a buyer and this includes people who are HIV positive.
If a person has side effects from HIV medication, the doctors and hospitals will not treat them and they won’t change the medications. They will say, ‘this is all there is – it’s this or nothing’. They also do not give a high level of care to HIV patients. It’s like they see this as part of the punishment that should go with a person contracting AIDS and they feel that HIV sufferers deserve it.
HIV sufferers are expected to go to group counselling and are forced to participate. This only increases the chances that other people will know their HIV status.
When she was about [Age 1] and at university, her sister’s colleague died of AIDS. She visited him with her sister and was distressed to see someone suffering like he did. He had no one to visit him and had been abandoned by his family. After he died, the applicant’s sister told her he died of AIDS.
If she returned to Nigeria, her family would prefer to keep her in isolation in a reserved locked room rather than let her bring shame to them. She would not be able to talk to anyone or access health care and medications for fear of revealing her status. She could only eat and wait for her death which they believe will eventually come even with the medication.
She has not experienced harm in Nigeria as she was diagnosed with HIV in Australia and hasn’t returned to Nigeria since. She did not move or relocate within Nigeria as she was not at risk of harm at the time.
She fears that she would be harassed in the street. She would be verbally abused constantly and people would spit on her in the street. She would not be able to get a stable job as most jobs require HIV testing and employers and workers are not willing to relate to an HIV-positive person. She would be seen as a curse, as one who deserves to be punished for her sins of waywardness. Life would be very difficult for her.
She does not believe that the police would protect her as they don’t protect people. They will arrest anyone you like if you give them money but then they will also take money to arrest you if the other person has more money so the only thing to do is walk away. The police are not there to provide protection or safety to people facing harassment or harm.
She does not know of a safe place for someone with HIV/AIDS in Nigeria. There were some areas in the north that were more tolerant of HIV sufferers, but they are now overrun by Boko Haram. Even in a big city she would face discrimination and ostracization. In Nigeria, people are very close to their neighbours and everyone knows everyone’s business. If they discovered she had HIV, they would move away and it would quickly become known to others.
None of the countries where she has the right to enter and live have any better attitudes towards HIV sufferers than Nigeria, so she would fear the same harassment and mistreatment wherever she was to live. Also, because of her HIV status, she fears she would be singled out for discriminatory treatment and would be driven out of these countries, so she doesn’t believe any right to residence exists in reality.
The applicant later provided a copy of a letter dated 19 April 2016 from [Dr A], then Consultant in [Infectious Diseases] at [named] Hospital. [Dr A] said the applicant had been diagnosed with HIV in June 2014 when she developed an episode of shingles. Since her HIV diagnosis, she has commenced antiviral medication and is stable. Her only other medical problem is seasonal allergies for which she is taking a nasal spray. [Dr A] expects the applicant to remain in good health for the foreseeable future.
The applicant attended an interview with the Department of Home Affairs to discuss her application and claims on 27 September 2019.
She provided a letter dated 26 September 2019 from [Dr B], her General Practitioner, about her HIV status, viral load and public health risk, as well the results of blood tests in 2018 and 2019. [Dr B] also said that the applicant was in full-time employment and had made her life in Australia. [Dr B] said that the applicant would face isolation, stigma and lesser medical care if her visa application was denied.
On 2 October 2019, the applicant provided a signed statement with the following information in support of her application.
The applicant has been living in South Australia since January 2014 and although she does not have family related by blood, she feels she is not alone as she has a family who she has been close to for about four years and who she feels cares for her and supports her when she is in need.
She attends a local [Church] and has made good friends who are very supportive in times of spiritual and emotional need.
She belongs to a small group called [Group name] where they learn about HIV and how to live healthily. The group has social outings and positive leadership programs and the members are great friends who talk freely about their health and provide emotional and financial support to each other.
She holds a job that is not her dream job, but she works with great and supportive people. Her manager provides support and coaching, and she enjoys going to work every day.
The only discrimination she has experienced in Australia because of HIV has been from someone from Nigeria who breached her confidentiality.
She believes that she can live in peace here, work with sound mind and health and achieve her goals.
When she finished studying in Australia, she was still battling with her diagnosis for HIV and facing rejection from her family and she could not think about going back to Nigeria and living in a different area. She was also facing the break-up of her five-year relationship with her partner in Nigeria who did not want to be with someone with HIV who needed to take lifelong medication. The stigma and discrimination towards HIV sufferers is widespread in Nigeria and all she could think of was to hide herself in fear and shame in Australia where she is already.
The applicant also provided a letter dated 2 October 2019 from [Dr B] with information about her current medication and its efficacy, the availability of medication in Nigeria, the applicant’s overall health status and the comparison of life expectancy in Australia versus Nigeria.
On 22 October 2019, on behalf of the applicant, the Legal Services Commission of South Australia provided updated country information about the stigma and discrimination faced by HIV patients in Nigeria and the poor treatment coverage. The letter outlined information on HIV anti-retroviral treatment (ART), the availability of ART in Nigeria, protection of authorities and relocation within ECOWAS (the Economic Community of West African States).
On 5 November 2019, a delegate of the Minister refused the applicant’s protection visa application.
Review application
On 25 November 2019, the applicant applied for a review of the delegate’s decision.
On 15 September 2022, the Tribunal received an outline of the applicant’s claims and a pre-hearing submission including four attachments.
In her outline of claims, the applicant claims to be a citizen of Nigeria and to not have a right to enter and reside in any other country. She asserts that if she is returned to Nigeria, she will be subject to persecution and/or face significant harm for reasons of membership of the social group articulated below.
The applicant claims that she has a well-founded fear of persecution as a member or perceived member of the following groups:
·   People living with HIV (PLHIV) in Nigeria
·   Women living with HIV in Nigeria
·   Women in Nigeria
·   Sex workers or drug users in Nigeria, and
·   The cumulative impact of all these factors collectively.
The applicant fears returning to Nigeria due to:
·   the persecution, discrimination and harm that she will suffer because of her HIV status generally, as a woman living with HIV and as a person perceived as a sex worker or drug user
·   the substandard healthcare and lack of access to her current HIV treatment as any disruption in her treatment will have dangerous consequences for her health
·   the collective combination of these fears that will place significant stress on her mental, emotional and physical health.
She fears that due to the stigma and discrimination surrounding PLHIV, particularly women, she does not have any family support and, if she is unable to subsist due to the stigma and discrimination limiting employment opportunities, she will be unable to afford ART. In the absence of family support, there is a real risk her health will deteriorate, leading to dire and even fatal consequences.
The applicant fears that she will not be able to access sufficient health care in Nigeria due to her previous observations of the hospital system and that substandard health care and discrimination in the provision of services will be prohibitive in ensuring her condition is adequately managed and treated.
She fears that she will be subject to serious harm amounting to persecution by the community, family, healthcare services and state authorities.
She also claims that the harm she will face amounts to significant harm, including being subject to cruel or inhumane treatment or punishment, degrading treatment or punishment and arbitrary deprivation of life.
The first attachment was a copy of [Dr B]’s letter of 2 October 2010.
The second attachment was a letter from [Dr B] dated 9 September 2022 in which she outlined the applicant’s current treatment, the risk to the applicant’s health if she experienced any treatment disruption, her opinion about the applicant’s ability to access her current ART in Nigeria, and the Australian government’s decision to make HIV treatment available at no cost to people who are ineligible for Medicare from March 2022.
The third attachment was a statutory declaration from the applicant dated 13 September 2022 in which she provided information about her background, growing up in Nigeria, witnessing substandard healthcare and discrimination of people living with HIV, coming to Australia, HIV diagnosis, fears of returning to Nigeria, persecution and harm she will face as a PLHIV in Nigeria, persecution and harm she will face as a woman living with HIV in Nigeria, harm she will face due to substandard healthcare in Nigeria, suicidal ideation and self-harm, inability to relocate and life in Australia.
The fourth attachment was a copy of the applicant’s statement dated 2 October 2019 that was provided to the delegate.
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The applicant was represented in relation to the review. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 27 September 2022, the Tribunal received an 11-page post-hearing submission that addressed the applicant’s student visa and genuine temporary entrant criteria, country information, employment, right to relocate and reside in neighbouring countries, arbitrary deprivation of life and concerns regarding information not previously raised. The applicant’s representative also provided a de-identified copy of an unpublished decision made by the Tribunal, constituted by a different member, in 2022 that the representative claimed was based on similar fact circumstances to those of the applicant. The Tribunal has read and considered the submission and the unpublished decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant meets the refugee or complementary protection criteria because of her HIV status, as a woman from Nigeria, and as a member of a particular social group comprising women living with HIV in Nigeria. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The applicant provided a copy of the delegate’s decision with her application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
Based on the copy of the applicant’s current passport sighted at the hearing, the Tribunal accepts that the applicant is a national of Nigeria and assesses her claims accordingly.
The applicant was in Australia at the time of this decision.
The applicant presented in a manner that the Tribunal perceived to be truthful and credible, and her information about how she thought that she would be treated as a woman living with HIV was consistent with the country information applicable to her particular circumstances, which are detailed below.
The applicant arrived in Australia on a student visa in February 2014 to further her studies in [Subject 1]. She holds a [Qualification 1 in Subject 2] from [University 1] in Nigeria and a [Qualification 2] in [Subject 1] and a [Qualification 3] in [Subject 3] from [a University in Adelaide]. She developed a case of shingles and was diagnosed with HIV in June 2014.
Women living with HIV
The applicant fears that healthcare in Nigeria is substandard and she will not be able to access her current HIV treatment if she were to return. Her concerns have been informed by the healthcare her parents received before she left Nigeria and her observations of the treatment a friend of her sister’s received in hospital when the applicant was about 20 years of age. As discussed at the hearing, the applicant’s experience of the Nigerian health system is dated. UNAIDS information for Nigeria for 2021 shows that impressive progress has been made over the last few years in extending treatment to people infected with HIV. Some 97 per cent of the 1.1 million women aged 15 and over living with HIV were receiving antiretroviral therapy (ART) in 2021.[1] The European Union Agency for Asylum reports that antiretroviral medications for HIV are free of charge and available in most government-owned health facilities but may not be free at privately owned pharmacies.[2]
[1] Country factsheet: Nigeria 2021, UNAIDS, UNAIDS is leading the global effort to end AIDS as a public health threat by 2030 as part of the Sustainable Development Goals,
[2] Medical Country of Origin Information Report Nigeria, European Union Agency for Asylum, April 2022.

The applicant’s General Medical Practitioner [Dr B] provided three letters, dated 26 September 2019, 2 October 2019 and 9 September 2022. The Tribunal is satisfied that [Dr B] is a General Medical Practitioner with experience in the care of HIV patients and accepts her evidence about the applicant’s medical treatment in Australia. As there is no evidence that [Dr B] has experience of the Nigerian health system, the Tribunal did not give weight to her opinion about HIV treatment in Nigeria and what the applicant may experience. Instead, the Tribunal gives weight to the country information and information from UNAIDS.
The applicant is concerned that if she returns to Nigeria she will face verbal criticism from the hospital nurses because of her HIV status and for what she did in the past, as women with HIV are perceived as sex workers. She also believes that she will experience discrimination in the community as the fact of her condition will not be kept confidential by medical staff, who are more interested in protecting their families than in protecting patients’ confidentiality. She said that the only discrimination that she has experienced in Australia has been from people from Nigeria, including one who gossiped about her HIV status. As a result, she no longer goes to Nigerian meetings.
The applicant is concerned that, if she returned to Nigeria, she does not have any family on whom she could rely. When she advised her siblings of her HIV status, her Nigerian-based siblings informed her that they did not want her to return to Nigeria and they wanted her to stay in Australia and continue schooling until she dies. They do not want the curse and sickness transferred to their children and other relatives. Her brother told her that if he sees her close to him or his family, he will make sure that she dies locked in a room. She says her Nigerian-based siblings have disowned her. Her only remaining family contact is with her sister who lives in [Country]. The applicant’s long-term partner in Nigeria also ended their five-year relationship after learning about her HIV status as he did not want to be with someone who had HIV and needed to take life-long medication.
The Tribunal discussed with the applicant that she is highly qualified and had worked in Nigeria for her sister’s husband’s company doing [a Job task]. However, the applicant says that she has not used her professional qualifications in Nigeria or Australia. She has worked in a [Workplace] in Australia for the last four and a half years. She is concerned that she will have no means of supporting herself in Nigeria, as potential employers would require her to undergo HIV testing and, when they found out her HIV status, they would not hire her because they would not want her to infect other staff.
The applicant fears that, without access to regular employment, she will only have two options to support herself, these being either sex work or finding a man willing to support her, both of which would expose her to the risk of abuse. At the hearing, she spoke about her experience at university, where she had engaged in sex work to help support herself and had experienced violence from men as a result.
The applicant’s claims about how she will be treated as a person living with HIV are supported by the country information.
International human rights observers report a high rate of stigma against people living with HIV, with the public considering HIV to be a result of immoral behaviour and a punishment for same-sex activity. Although authorities and NGOs have sought to reduce the stigma and change perceptions through public education campaigns, people with HIV/AIDS are still at risk of losing their jobs or being denied healthcare services.[3]
[3] Country factsheet: Nigeria 2021, UNAIDS, >
UNAIDS reports that 51.8 per cent of people in Nigeria aged 15 to 49 responded ‘no’ to the question ‘would you buy fresh vegetables from a shopkeeper or vendor if you knew that this person had HIV’.[4]
[4] Ibid.
The Immigration and Refugee Board of Canada reports a source explaining that:
there are cases of HIV positive gay men who have been denied employment or were fired following HIV testing that was carried out either during interviews or during a work placement. [However] corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of the report’.[5]
[5] Ibid.
The applicant’s claims about how she will be treated as a woman living with HIV are also supported by the country information. Despite constitutional protections, sex-based discrimination and violence remains a significant risk for women in Nigeria.[6] The country information report includes the following about gender-based violence in Nigeria:
It is difficult to accurately determine rates of gender-based violence (GBV) in Nigeria due to a lack of reliable data and under-reporting. To DFAT’s knowledge, there have not been any credible national surveys relating to GBV since 2013. International observers report, however, that GBV in the form of domestic and intimate partner violence is widespread across all geographic locations, socioeconomic levels, and religious and ethnic groups, and that many consider it socially acceptable.[7]
[6] The Department of Foreign Affairs and Trade Country Information Report Nigeria 3 December 2020 33.
[7] Ibid 37.
The Tribunal has considered the applicant’s unique personal circumstances as a woman living with HIV who may be denied employment of any kind so that she would be unable to subsist and who has no family support available. Given her personal circumstances and the country information referred to above, the Tribunal finds that there is a real chance the applicant may be denied employment that would lead to her being denied the capacity to earn a livelihood of any kind and therefore threaten her capacity to subsist. Accordingly, the Tribunal finds that if the applicant returned to Nigeria now or in the foreseeable future there is a real chance that she will suffer serious harm as a member of a particular social group.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her membership of a particular social group, being a woman living with HIV in Nigeria who may be denied employment of any kind so that she would be unable to subsist and who has no family support available.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Nigeria, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason that she is a member of a particular social group.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
There is no evidence before the Tribunal that the State is able to provide effective protection measures for someone in the applicant’s unique personal circumstances, being a woman living with HIV who may be denied employment of any kind so that she would be unable to subsist and who has no family support available. The Tribunal is satisfied that effective protection measures could not be provided to the applicant by the State.
Protection Obligations
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
As Nigeria is one of the 15 member states of ECOWAS, the Tribunal considered whether the applicant has the right to enter and reside in another member state. The DFAT Thematic Report for ECOWAS states that ‘(t)he Right of Entry affords all ECOWAS community citizens in possession of valid travel documents and international health certificates the right to stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements’.[8] It is unclear whether, as a person living with HIV, the applicant would obtain an international health certificate. The DFAT Thematic Report also states that ‘unemployment and underemployment are both very high across the ECOWAS region, particularly for the young and for migrants’[9] and ‘discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region’.[10] The Tribunal is satisfied that the applicant’s well-founded fear of persecution for reason of her membership of a particular social group, being a woman living with HIV who may be denied employment of any kind so that she would be unable to subsist and who has no family support available, extends to all of the member states of ECOWAS. The Tribunal is satisfied that s 36(4)(a) applies and the applicant is not able to avail herself of protection in another country under s 36(3) of the Act.
[8] DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020 14.
[9] Ibid 7.
[10] Ibid 9.
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.
Katherine Harvey
Senior 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.
…

[2022] AATA 4579

9 November 2022

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