2008607 (Refugee)

2008607 (Refugee) [2024] AATA 4173 (11 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Danielle Munro
CASE NUMBER: 2008607

COUNTRY OF REFERENCE: Uganda
MEMBER:Peter Haag
DATE:11 October 2024
PLACE OF DECISION: Melbourne
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 11 October 2024 at 3:25pm

CATCHWORDS
REFUGEE – protection visa – Uganda – political opinion – opposition to the government – Forum for Democratic Change – particular social group – people with HIV/AIDS – detention – presumption of homosexuality – denial of medical services – East African Community – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZRTC v Minister for Immigration and Broder Protection [2014] FCAFC 43

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 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Uganda, applied for the visa on 5 October 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the legal requires for the grant of a protection visa.
The applicant appeared before the Tribunal on 17 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant meets the requirements of s 36(2)(a) of the Act.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal has no responsibility or obligation to specify or assist the applicant in specifying particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The Tribunal applied this provision when reviewing the merit of the applicant’s claims and evidence.
The applicant’s background - country of reference
The applicant was born in Uganda on [date]. In establishing his identity, the applicant placed reliance on a certified copy of the biodata page of a passport apparently issued by the responsible authority in the Republic of Uganda in the name of the applicant. The Department did not challenge the authenticity of this document, his passport, or his identity. The personal data in the copy passport document is consistent with other information the applicant provided in the protection visa application, and his evidence at hearing about his identity, nationality, and citizenship.
In the absence of evidence to the contrary, the Tribunal accepts the evidence is sufficient to establish the applicant’ identity, and that he is a national and citizen of the Republic of Uganda. There is no evidence that indicates the applicant is a citizen of any other country.
The Tribunal finds the applicant is a citizen of the Republic of Uganda (Uganda) , with a right to enter and reside in Uganda. The Tribunal also finds Uganda is the country of reference against which to assess his protection claims.
The applicant’s ethnicity is Bantu.
The East African Community
The Tribunal also finds that the Uganda is a member of the East African Community (EAC) and that the other member states of EAC are Burundi, Kenya, Rwanda, South Sudan, Uganda, and the United Republic of Tanzania.
The EAC was established by treaty which grants to the citizens of each member country freedom of movement between member countries, and a right of residence in each member country for up to 6 months.
In pre-hearing written submissions, the applicant’s legal representative correctly acknowledged the right to enter and reside in EAC countries for up to 6 months constitutes a ‘right to enter and stay’ that is comprehended by s 36(3) of the Act. In support of this submission the applicants’ legal representative referred the Tribunal to the Federal Court decision of Justices Tracey, Flick and Griffiths in the case of SZRTC v Minister for Immigration and Broder Protection [2014] FCAFC 43 (11 April 2014).
The Tribunal is satisfied the EAC treaty bestows on the applicant a right to enter and reside temporarily outside Uganda for up to 6 months in any EAC member country.
The court in SZRTC provided guidance in the application of s 36(3) in circumstances where the Tribunal has determined an applicant for a protection visa has a right to enter and reside temporarily in a country other than their home country.
Before applying s 36(3) of the Act, it is necessary to determine whether one or more of the criteria for a protection visa prescribed in s 36(2) of the Act is met.
Therefore, it is necessary to first decide that in the event of the removal of the applicant to Uganda now or in the reasonably foreseeable future, whether the applicant would be subjected to:
·a real chance of serious harm (the refugee criterion); or,
·a real risk of significant harm (the complementary protection criterion),
If either question is answered in the affirmative, the Tribunal is required to decide whether one or more of the qualifications contained in s 36(3) applies to the applicant.
Having determined that s.36(3) applies in this case, it is necessary for the Tribunal to determine whether one or more of the qualifications contained in Sub-sections (4), (5) and (5A) apply to close the ‘gateway’ to a permanent protection visa, if the Tribunal finds the applicant is owed protection in Australia because he meets the refugee criterion prescribed in s 36(2)(a) of the Act, or the complementary protection criterion prescribed in s 36(2)(aa) of the Act.
Section 36(3) of the Act relevantly provides that:

…

(3)  Australia is taken not to have protection obligations in respect of a non - citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non - citizen is a national.
(4)  However, subsection   (3) does not apply in relation to a country in respect of which:
(a)  the non - citizen has a well - founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non - citizen availing himself or herself of a right mentioned in subsection   (3), there would be a real risk that the non - citizen will suffer significant harm in relation to the country.
(5)  Subsection   (3) does not apply in relation to a country if the non - citizen has a well - founded fear that:
(a)  the country will return the non - citizen to another country; and
(b)  the non - citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A)  Also, subsection   (3) does not apply in relation to a country if:
(a)  the non - citizen has a well - founded fear that the country will return the non - citizen to another country; and
(b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non - citizen availing himself or herself of a right mentioned in subsection   (3), there would be a real risk that the non - citizen will suffer significant harm in relation to the other country
The Tribunal will return to the forgoing matters later in these reasons. Nevertheless, in addition to assessing the applicant’s protection claims against Uganda, it is necessary to assess the claims against the other member countries of the EAC.
Education history
The applicant successfully completed secondary school in [specified year]. In [year] he completed a [Qualification 1] in Uganda.
In 2011 the applicant completed the [Qualification 2], a course provided by [Organisation 1].
The applicant can speak, read, and write English and Luganda, being the language spoken by ethnic Bantus.
Employment history
From November 2014 to July 2015 the applicant was employed by [local sport agency] in the position of [Position 1].
From November 2013 to July 2015, the applicant was employed by [Organisation 1] with several areas of responsibility, namely:
·[roles including Position 1].
From November 2000 to July 2015 the applicant was employed as [an Occupation 1] at [Agency 1].
The applicant described his occupation as [Occupation 1], and the Tribunal accepts that the applicant was [an Occupation 1] in Uganda, and, based on the documentation and the applicant’s evidence at hearing, the Tribunal is satisfied that the applicant was a widely known to be a professional [Occupation 1].
Migration history
On 5 August 2015 the applicant was granted a temporary GA-400 visa which permitted him to enter Australia for the purpose of [attending an international event].
[Later in] August 2015 the applicant arrived in Australia.
[In] September 2015 the GA-400 visa expired.
On 5 October 2015 the applicant lodged an application for a permanent Protection visa.
On 6 October 2015 the applicant was granted a Bridging visa which permits him to remain temporarily in Australia, until his application for a permanent Protection visa is finally determined.
Assessment of the claims and evidence
On 5 May 2020 the delegate of the Minister refused to grant the applicant a protection visa and gave written reasons for the decision (the primary decision). The Tribunal read the record of the primary decision that the applicant provided to the Tribunal prior to the hearing.
The claims
In summary, before the delegate of the Minister, the applicant claimed he met the requirements for the grant of a Protection visa because he had a well-founded fear of persecution in Uganda for the reason of political opinion. The applicant claimed he was adversely known to the Government, and the state security apparatus because he was stridently critical of the government when he [appeared in a national broadcast]. Additionally, he claimed he was involved in an opposition political organisation, namely the Forum for Democratic Change which challenged the Governing political party and politicians on the grounds of competence, integrity, and fitness to hold public office.
The applicant claimed he was arbitrarily detained by members of the state security services, tortured, and threatened with death.
On 20 March 2020 the applicant was voluntarily interviewed by the Department about his claims.
The delegate of the Minister was not persuaded that the applicant had a well-founded fear of persecution in his home country and refused his application for a protection visa.
It is unnecessary for the Tribunal to determine the merit of the claims the applicant relied on before the delegate of the Minister. This is a consequence of changes to the applicant’s circumstances which relate to his health. The changes are relevant and material to the determination of whether the applicant meets the requirements for the grant of a protection visa.
The new claim
The applicant now claims to have a well-founded fear of persecution for the reason of his membership of a particular social group, namely, persons living with the Human Immunodeficiency Virus (HIV) in Uganda, and in each of the other member countries of the EAC.
[Doctor A, positions specified] provided 2 medical reports to the Tribunal. The Tribunal accepts [Doctor A] is an expert in infectious diseases, including HIV infection and the management of patients with HIV infection, and accepts the opinions of [Doctor A] about the applicant’s health as they are stated in 2 medical reports which form part of the evidence this review.[1]
[1] Tribunal file, Doc Id 13597941 & Doc Id 13633812
[Doctor A’s] report dated 16 September 2024, is referred to in these reasons as the first report, and [Doctor A’s] post hearing report which was provided to the Tribunal on 20 September 2024, is referred as the second report.
The first report established that the applicant was diagnosed with HIV and AIDS when he was admitted to [Hospital 1] in September 2019. The diagnosis was incidental to the reason the applicant was hospitalised.
The applicant was hospitalised and initially diagnosed with [two specified conditions], both conditions were found to be serious. While being assessed the applicant he was diagnosed with HIV/AIDS and epilepsy. The applicant had been unaware that he was HIV positive and epileptic.
Three months after the original presentation, a chest x-ray disclosed what appeared to be a lung abnormality. The abnormality was biopsied, but no specific diagnosis was able to be made. Clinicians at [Hospital 1] continue to monitor the abnormality.
Against this background, on 20 March 2020 the applicant underwent a Department interview relevant to his protection claims and the evidence upon which he was relying to substantiate his claims. The applicant did not disclose his diagnosis during the interview, or before the primary decision was made.
In the first report [Doctor A] observes that the applicant’s treatment plan includes the ongoing assistance he receives from the social work unit of the hospital, and community nursing staff. [Doctor A] states that these services are vital for the applicant’s psychological and physical wellbeing.
In the opinion of the Tribunal, in the ordinary course of human experience, it is common knowledge that a diagnosis of HIV/AIDS would be likely to engender in an individual with that diagnosis a rational fear of consequential societal stigmatisation, discrimination, the health deficits of HIV/AIDS, and, in this case, a compounding rational fear that the epileptic fit he suffered in public which led to his first hospitalisation could recur in public. This opinion is supported by [Doctor A], who authoritatively opines in his first report that stigma related to HIV and the attitudes towards and discrimination against those with HIV are issues in any country[2] but are particularly acute in many sub-Saharan African countries such as Uganda and have a huge impact on a patient’s physical and mental health.[3] The Tribunal finds that [Doctor A’s] opinion was derived from his training and experience as a infectious disease physician and his experience in the management of HIV infection, and finds that his opinion is within the scope of his expertise.
[2] Emphasis added
[3] Ibid
In reaching the foregoing finding the Tribunal is reassured, if reassurance is necessary, by the senior positions held by [this doctor].[4] His [positions] to which he has been appointed, demonstrate that [Doctor A] is regarded by his medical peers to be an expert in the diagnosis, treatment and management of HIV/AIDS and related conditions, and global trends in that respect.
[4] Paragraph [47] above
In evidence the applicant contended that he has struggled to come to terms with the diagnosis, he is receiving counselling support in this respect, and for that reason he did not disclose his various medical conditions during the Department interview and before the primary decision was made. [Doctor A’s] first report is consistent with and supportive of this evidence.
Timing of the assertion of the new claim and advancing supporting evidence - no unfavourable inference
The Tribunal is satisfied the applicant has given a reasonable explanation for not raising the new claim, and presenting supporting evidence before the primary decision was made. On balance, the Tribunal draws no inference unfavourable to the credibility of the new claim or the supporting evidence on the basis that the applicant failed to make the claim and advance supporting evidence before the primary decision was made.
In April 2020, the applicant was admitted to [Hospital 1] following a seizure. This condition was treated as a complication of the applicant’s pre-existing [specified condition] and was treated with an anticonvulsant agent.[5]
[5] Ibid, the first report

The applicant’s HIV infection requires regular specialist review, HIV load testing, and other tests necessary to monitor the efficacy and toxicity of HIV therapy. Although the applicant’s medications have not been specified in either medical report, by necessary implication both reports imply that the applicant’s medical therapy includes regular drug therapy. In evidence the applicant asserted, and the Tribunal accepts that he takes multiple tablets daily to manage his HIV infection and epilepsy.
Conditions in Uganda
The legislature in Uganda enacted the Anti-Homosexuality Act 2023 (AHA), Acts 2023, Parliament of Uganda. The applicant submits the AHA is detrimental to all men in Uganda living with HIV and would be seriously detrimental to him if he is removed to Uganda now or in the reasonably foreseeable future.
It is submitted, the AHA has reduced the use of HIV health care services in Uganda because affected individuals fear being classified as homosexual. Homosexuals also fear being excluded from access to accommodation and being held at ‘arms-length’ by the general population, public and private service providers, and employers if they are suspected of being homosexual.
The applicant gave evidence which the Tribunal accepts that to properly manage his HIV infection and epilepsy, he must take multiple tablets every day. There would be no hiding his condition from any person with whom he was living or working daily.
Section 11 of the AHA criminalises the promotion of homosexuality and imposes a penalty of up to 20 years imprisonment for that offence. This offence includes letting or sub-letting housing to persons who may commit homosexual acts on rented premises.
The constitutional validity of the AHA was challenged in Uganda’s Constitutional Court. The court found s 11(the accommodation provision) to be unconstitutional but ruled that the legislation imposed a legal obligation on Ugandans to report acts of homosexuality. The Court ruling has been taken to have imposed a continuous obligation on landlords and the community generally to report known or suspected homosexual activities.[6]
[6] Uganda: Court Upholds Anti-Homosexuality Act/Human Rights Watch (HRW.org)
In July 2024, a Supreme Court appeal was filed against the decision of the Constitutional Court that the AHA is consistent with the Constitution, and it did not violate internationally accepted human rights.[7]
[7] Uganda: rights activists file appeal against ruling on anti-LGBTQ law/Reuters
Andrew Tendo, resident medical officer in a US-funded clinic, warned that new waves of HIV infections were forming a cohort of vulnerable people who are not seeking treatment because they are afraid of being identified and arrested under the new legislation.[8]
[8] Reuters: HIV alarm in Uganda as anti-gay law forces LGBT ‘lockdown.’
Matthew Kavanagh, a professor of global health at Georgetown University, states that due to a fear of being identified as a gay man, even if they are heterosexual, individuals certainly will not present for HIV testing because many Ugandans associate HIV with gay sex.[9] Therefore, due to these societal and cultural assumptions around HIV merely engaging in HIV prevention, testing and treatment efforts can implicate individuals as being gay and lead to the imposition of punishment [under the new Anti-Homosexuality Act (Uganda)].[10]
[9] Vox: Uganda’s harsh anti-gay law is a public health disaster in the making
[10] Ibid
Under the AHA people can be punished for providing health care, potentially facing fines and licence cancellation.[11] Section 11 (3) of the AHA protects service providers who breach patient confidentiality by disclosing patient/client information. This law has been interpreted widely to mean that service providers must report to police any patient/client they suspect, or know is gay. Consequently, faith in patient/client confidentiality has collapsed in Uganda.[12]
[11] Anti Homosexuality Act 2023 s 11(3).
[12] ibid
The UNAIDS Regional Director for Eastern and Southern Africa states that criminalisation of a segment of the population most at risk from HIV has undermined public health and the overall HIV response in Uganda.[13]
[13] UNAIDS notes the judgment of the Constitutional Court of Uganda which has struck down certain parts of the Anti-Homosexuality Act 2023/UNAIDS
In reliance on the forgoing country information, it is submitted that the applicant is reasonably likely to be denied access to housing as landlords would assume the applicant is gay because he is HIV positive, and they would be at risk being charged under the new Anti-Homosexuality Act if they failed to report him to the authorities. The same fear of report and exclusion from medical assistance arises from the existence of the legislation in its current form[14]
[14] Tribunal file, applicant’s post- hearing submissions, Doc Id 13633812
The foregoing submission is supported by [Doctor A’s] second report in which he opines that the applicant’s HIV infection would get out of control, leading to a deterioration in his health, acquisition of drug resistance, increased risk of transmission of the virus, and a decrease in immune function leading to life-threatening opportunistic infections.[15]
[15] Ibid
Additionally, [Doctor A] opines that as a result of the applicant having interrupted or delayed supply of ARVs, overtime he would develop wasting and progressive ill health leading to death.[16] Therefore, it is evident that in the likely event of interrupted or delayed supply of antivirals, in the right dosages for the applicant, and regular expert monitoring of his condition, if he is returned to Uganda or an EAC country, over time his appearance would be reasonably likely to disclose to the community that he is HIV positive, and lead to the assumption that he has sex with men, he is a gay man, and he is infectious.
[16] Ibid
On balance, the evidence is sufficient to establish to the satisfaction of the Tribunal that the applicant would be subject to a real chance of systematic discriminatory conduct leading to significant physical harassment, physical mistreatment, economic hardship, and denial of access to basic medical services, where the denial would threaten his capacity to subsist.
The Tribunal has considered the DFAT Country Information Brief Uganda. It provides little assistance in relation to this review. No specific DFAT country information report on Uganda has been published.
The Tribunal accepts the country information about Uganda that is referenced in the applicant’s written submissions, including the consequential submissions as to the risk of harm that the applicant would be subjected because he is living with HIV, if he is returned to Uganda now and in the reasonably foreseeable future, to be reliable and persuasive.
Findings – refugee criterion
Having considered the applicant’s claims individually and cumulatively, the evidence, including the expert medical reports, considered alone and in conjunction with the country information about Uganda, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for the reason of his membership of a particular social group, namely Ugandans living with HIV, which is a reason specified in s 5J(1)(a) of the Act, if he is removed to Uganda now or in the reasonably foreseeable future. Accordingly, the applicant does satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reasons specified in s 5J(1) of the Act. Accordingly, the Tribunal is satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Uganda: a member state of the East African Community sub-Saharan African states
Further to the above discussion about the operation of s 36(3) of the Act, this provision is relevant to the determination whether the applicant is owed protection pursuant to the laws of Australia.
Pursuant to the EAC agreement the applicant has a right to enter and stay temporarily in the countries that are party to the agreement. Those countries have been identified in these reasons at paragraph 17. That fact considered with s 36 of the Act renders the applicant ineligible for protection in Australia, unless the evidence demonstrates the applicant will be persecuted in those countries for the reason of race, religion, nationality, membership of a particular social group or political opinion.
It has already been observed by the Tribunal that [Doctor A] authoritatively states in his first report that stigma related to HIV and the attitudes towards and discrimination against individuals living with HIV are issues in any country, and those issues are particularly acute in many sub-Saharan African countries such as Uganda and have a huge impact on a patient’s physical and mental health.[17] The Tribunal gives [Doctor A’s] opinion significant weight. Relevantly, the import of the applicant’s evidence is that he would be readily identified as a foreigner in the EAC countries because he speaks Bantu, whereas in the other member states different languages are spoken.
[17] Paragraph [54]
Findings – right to enter and stay temporarily in any EAC member state
The Tribunal is satisfied the applicant, in search of regular medical monitoring, assessment and treatment for the sort described by [Doctor A] in the medical reports, would be readily identify in the EAC countries as a Bantu speaking foreigner who is HIV positive, and assumed to be infectious, and best avoided.
In the absence of country information and evidence to the contrary, the Tribunal is satisfied of the existence of a real chance the applicant would be stigmatised and discriminated against, and that the applicant would face life threatening denial of access to HIV medication, consistent medical monitoring and treatment, or interrupted access to HIV medication and medical monitoring and treatment in the EAC countries.
The Tribunal is satisfied the above-mentioned circumstances fall within the exception in s 36 of the Act, and that the section does not exclude the applicant from protection in Australia, because the Tribunal is satisfied of the existence of a real chance the applicant will be persecuted in the ECA countries for the reason of his membership of a particular social group, namely men living with HIV.
Consequently, the finding that the applicant satisfies the provisions of s 5J of the Act, and that he has a well-founded fear of persecution in Uganda stands. Furthermore, the Tribunal’s finding that the applicant satisfies the real chance test, due to a well-founded fear of persecution in Uganda for a reasons specified in s 5J(1) of the Act has not been negated by s 36(3) of the Act, and it stands. Accordingly, the Tribunal is satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4173

11 October 2024

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