2013362 (Refugee)

2013362 (Refugee) [2024] AATA 3528 (12 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2013362

COUNTRY OF REFERENCE: Singapore
MEMBER:Phillippa Wearne
DATE:12 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2024 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – Singapore – particular social group – homosexual – reservist national service commitments – military detention – same sex marriage – bullying – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Appellant S395/2002 v MIMA (2003) 216 CLR 473
CHB16 v MIBP [2019] FCA 1089
Chen Shi Hai v MIMA (2000) 201 CLR 293
CSV15 v MIBP [2018] FCA 699
GLD18 v MHA [2020] FCAFC 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is [an age]-year-old national of Singapore.[1] He arrived in Australia [in] December 2017 as the holder of an Electronic Travel Authority (Subclass 601) visa and lodged an application for a protection visa on 19 February 2018.
[1] A copy of the biodata pages of the applicant’s Singapore passport are held on the Department file.
On 26 August 2020, a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
The applicant was born in [District 1] and resided in [Town 1].
He states that he reads, writes and speaks English and Malay. He completed 10 years of formal education. He gives his religion as Muslim.
The applicant made claims for protection which are summarised as follows:
He needed privacy and freedom with his boyfriend. He also wanted to plan a career in Australia. They can’t live a gay life in Singapore. It’s a strict country and gay marriage isn’t allowed. People will insult, hate and dismiss them if they are together no matter where they are. People will make fun of them and criticise their behaviour. No gay authorities can help them.
The applicant included the name of his claimed boyfriend, [Mr A], in response to the question[2] requiring the applicant to set out details of other family members who travelled with him or with whom he resides in Australia.
The interview
[2] Question 43, Application for a Protection Visa, Part B, dated 19 February 2018.
The applicant attended a protection visa interview with a Departmental officer on 17 July 2020.[3]
The delegate’s decision record
[3] A recording of the 55-minute interview is held on the Department file.
The delegate accepted that the applicant is a gay Muslim man, with friends in Singapore who are aware of his sexual orientation. The delegate found that the applicant had ‘not really’ experienced harm in Singapore, except that ‘they talk about you being gay’ and this made him feel ‘stressed’.
The delegate noted that Singapore’s Penal Code[4] (at the time of the delegate’s decision) which criminalised same‑sex relations between men, was generally not enforced. As it had been constitutionally challenged in the courts many times by members of the LGBTQI+[5] community in Singapore, the delegate considered this showed that the community was active in their fight for equality and that they continued to make themselves highly visible in Singaporean society. The delegate also noted that the Pink Dot festival has been held annually in Singapore since its inception in 2009 in strong support of LGBTQI+ equality, attracting many thousands of supporters each year.[6]. Based on country information that described Singapore as a secular state together with the applicant’s evidence that he is in contact with his siblings and has ‘hometown friends’ who are aware of his sexual orientation, the delegate found the likelihood of the applicant as a Muslim LGBTQI+ person being subjected to treatment amounting to serious harm in Singapore was remote.
[4] Section 377A.
[5] Lesbian, gay, bisexual, transgender, queer, intersex/indeterminate, plus.
[6] Pink Dot SG – Accessed 20 June 2024.
The delegate also noted that during the interview the applicant claimed to feel insecure about the one or 2 weeks of ongoing annual training that he will be required to do as part of his reservist national service (NS) commitments. The applicant was unsure if he could handle the ‘tough training’ that he may have to do as a ‘rifleman’ and if his peers found out about his sexual orientation, they might laugh at, criticise, talk about him or ask him when he plans to marry. While acknowledging this kind of attention was unfortunate, the delegate found the likelihood of this amounting to serious harm to be remote. The delegate was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Singapore that there was a real risk that the applicant would suffer significant harm.
The applicant submitted a copy of this decision record to the Tribunal with his application for review.
The review application
On 28 August 2020, the applicant applied to the Tribunal for a review of the delegate’s decision.
The hearing
The applicant was invited to attend a hearing scheduled for 20 June 2024. However, on 19 June 2024 he informed the Tribunal that he would not be attending as he felt sick.
The applicant appeared before the Tribunal via video link from the Tribunal’s ACT premises on 28 June 2024 to give evidence and present arguments, with no interpreter requested or required. Where relevant, the applicant’s oral evidence at the hearing is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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). 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.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
During the hearing, the applicant told me that he had provided the details of his claims for protection to his boyfriend (at the time) [Mr A], who had filled out the protection visa application for him.
I accept that the applicant and [Mr A] arrived in Australia together on the same date in December 2017 and that [Mr A] also applied for a protection visa in 2018.[7]
Applicant’s life in Singapore
[7] Tribunal file 1827247 – constituted to the same Member.
I accept the applicant’s evidence given in the hearing, which is not in conflict with other evidence provided, that he had a troubled adolescence in Singapore. His parents divorced and re-partnered when he was a child. He was about 14 years old when his mother died. His stepfather didn’t want the applicant to remain in the family home, so the applicant lived with his aunt until she ‘kicked him out’. He was homeless for quite a while, living in playgrounds and parks. Sometimes he had to steal food to survive. Life became very miserable for him, and he felt that he had no choice but to stay at his biological father’s house. He left home to complete the compulsory 2-year NS training.
The applicant had attended primary school but became a truant at high school after his mother died.
The applicant has [specified family members]. He is ‘very close’ to [specified siblings] and in irregular contact with them by text messages. He is not close to [another sibling, who] has been ‘in and out of prison’. The applicant is not in contact with his father. No one in the family knows that the applicant is gay, although [one sibling] may suspect that he is. I accept the applicant’s evidence about his relationship with his family.
I also consider the applicant gave a credible account of his emerging homosexuality as an adolescent, and how he came to realise that he was gay. He liked guys. He met his first boyfriends in Singapore using the dating app, [named], to hook up. He could be very discreet that way. Then he met [Mr A] in [Country 1] and enjoyed being with him. They had a very good time together in [Country 1]. They decided that they wanted to live together. [Mr A] planned the trip for them to come together as tourists to Australia.
I consider that the applicant’s evidence regarding [Mr A] was given naturally and was unembellished. I accept that the applicant and [Mr A] were boyfriends when they left [Country 1] and arrived together in Australia and that they came to Australia as tourists.
The applicant described himself as a ‘bad’ Muslim. He said that he does not follow the Muslim practice at all. He said that maybe he would be interested to find out more about Christianity in the future. I accept that the applicant does not follow Muslim religious practices and that he may possibly want to find out more about Christianity in the future.
Australia – break up with [Mr A]
The applicant and [Mr A] travelled to [Town 2], Victoria, after arriving in Australia where they earnt money [in occupation 1], and later they worked at a nearby [business 1]. Then they moved to Sydney and worked at [various businesses]. The applicant has also worked as [an occupation 2]. He has worked in [occupation 3], which he described as verry hard labour. The applicant then worked as [an occupation 4]. Most recently he is working is working at a [business 1] in Canberra. He agreed that he had saved money and that he had gained a lot of work experience.
The applicant and [Mr A] started to fight a lot as they spent more time together in Australia. Their relationship became unhealthy. Things came to a head sometime in 2022. The police were involved. They split up. There is no on-going boyfriend relationship between them. They continued to live together, but as friends, not boyfriends. I consider that the applicant gave a credible and unembellished account of the demise of his partner relationship with [Mr A].
The applicant is currently seeing a [Country 1] man he met in a gay club in Sydney. However, he is uncertain of the future of this new relationship. He feels that his affection is not reciprocated. Perhaps he is being used.
The applicant has plans for staying in Australia. He loves it here. He does not feel judged. The Australian people accept him. He has studied some subjects that he could use to complete a Certificate 111 course. If he completes this course, he could work in [an agency] here [doing specified duties]. He wants to improve his English skills. He wants to buy a car as public transport in the ACT is not good. I accept that the applicant feels this way and has these plans in Australia.
Country information - Singapore
Secularism and economy
Singapore remains a largely conservative society on moral and social issues, although there has been a gradual shift to more liberal attitudes in recent years.[8]
[8] Singapore still conservative on moral, sexuality issues but more liberal since 2002: IPS Study, Justin Ong 3 February 2021 – Accessed 28 June 2024.
Its economy is performing exceptionally well, showing a robust growth and resilience in the first quarter of 2024 and grew by 2.7% year-on-year, marking the fastest pace of growth in 18 months.[9] Singapore’s GDP per capita has reached $88,000, making it the wealthiest nation in its region. This remarkable economic transformation occurred over the last two decades.[10] The unemployment rate as of the first quarter of 2024 is 2.1%.[11]
[9] Singapore posts fastest growth in 18 months as outlook improves, Reuters, Xinghui Kok, 23 May 2024 – Accessed 24 June 2024.
[10] Singapore has achieved astounding economic success, Economist.com. 8 May 2024 – Accessed 28 June 2024.
[11] Singapore Unemployment Rate Trading Economics – Accessed 24 June 2024.
The government of Singapore is officially tolerant of different religions and encourages religious harmony among the different religions practised there.[12] Overall, Singapore is regarded as successfully maintaining secularism while accommodating religious diversity and promoting interfaith harmony within its multicultural society.[13]
Homosexuality
[12] Religion in Singapore, Wikipedia – Accessed 24 June 2024.
[13] Singapore must take a neutral secular approach in multi religious society: PM Lee CNA 9 September 2022 – Accessed 24 June 2024.
Homosexuality is no longer illegal in Singapore. Section 377A of the Penal Code, which criminalised sex between men, was repealed in late 2022. This law had made homosexual acts punishable by up to 2 years in prison but had not been enforced since 2007. Its repeal marked a very significant legal step towards greater acceptance of LGBTQI+ rights in Singapore, although same-sex marriages and adoption by same-sex couples remain unrecognised.[14]
[14] Decriminalising homosexuality in Singapore: political responses from the perspective of secularism and electoral pragmatism Andrew Yu and Stephanie Kwan Nga Lam 24 May 2023 – Accessed 28 June 2024; LBGT Rights in Singapore – Wikipedia- Accessed 28 June 2024; Singapore lifts gay sex ban but blocks path toward marriage equality The Guardian 30 November 2022 – Accessed 28 June 2024.
However, even before the repeal of s 377A there had already been growing acceptance of the LGBTQI+ community in Singapore. The February 2021 UN National report Singapore[15] states:
Protection of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community.
We firmly oppose discrimination and harassment and have laws to protect all our citizens from such conduct. All Singapore citizens, regardless of their sexual orientation, are free to pursue their activities in their private space. Singapore also takes steps to protect members of the LGBTI community against discrimination.
[15] Submitted in accordance with para 5 of the annex to Human Rights Council resolution 16/21.
Violence based on sexual orientation is rare in Singapore and same-sex partners have equal legal rights to access protection. The US Department of State 2023 Report on Human Rights Practices, Singapore states[16]:
There were no official reports of violence against persons based on sexual orientation, gender identity or expression, or sex characteristics, although observers noted some instances could go unreported…
Same-sex partners had the same access to legal protections as others, including expedited protection orders in cases of harassment or violence, including by close and intimate partners.
[16] US DOS Human Rights Practices Singapore 2023 – Accessed 24 June 2024
The increasing acceptance of LGBTQI+ rights in Singapore has been driven by changing social attitudes, advocacy by civil society groups and the emergence of a global LGBTQI+ rights movement. While conservative values had traditionally ‘held sway in Singapore, younger generations increasingly accept homosexuality’.[17]
[17] Decriminalising homosexuality in Singapore: political responses from the perspective of secularism and electoral pragmatism Andrew Yu and Stephanie Kwan Nga Lam 24 May 2023 – Accessed 28 June 2024.
Another factor influencing the growing acceptance of LGBTQI+ rights is that Singapore is a highly competitive and dynamic city‑state, and many businesses and individuals are attracted to Singapore because of its open and tolerant culture. Section 377A was seen as hindering Singapore’s ability to attract foreign investment and talent. Repealing it was seen as a step towards greater equality and social justice for all Singaporeans.[18]
National Service
[18] Ibid.
National Service (NS) is a mandatory conscription system in Singapore that requires all male Singaporean citizens and second-generation permanent residents to serve in the uniformed services.[19] NS-liable men are required to register for NS on reaching 16.5 years of age and are scheduled for enlistment on reaching 18 years of age.[20]
[19] National Service in Singapore – Wikipedia – Accessed 28 June 2024.
[20] National Service Obligation Ministry of Foreign Affairs Singapore – Accessed 24 June 2024.
Every NS-liable man must serve 2 years of active duty as full-time national servicemen in the Singapore Armed Forces, Police Force or Civil Defence Force. After completing this full-time NS, they transition to annual reservist duties as operationally ready until the age of 40 (non-officers) or 50 (officers).[21] The annual reservist NS training can last up to 40 days.[22]
[21] National Service Obligation Ministry of Foreign Affairs Singapore – Accessed 24 June 2024.
[22] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 24 June 2024
NS is seen as crucial for Singapore’s defence, security and national identity.[23] Failing to attend reservist duties without valid deferment could lead to an investigation. If that happens and the person is found to have no valid reasons for missing reservist duties, they may be liable to disciplinary actions, such as being charged for being Absence Without Official Leave (AWOL).[24]
[23] National Service Through the Years – Singapore Government Agency – Accessed 24 June 2024.
[24] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 24 June 2024

Those who are investigated and found absent from NS when lawfully required to attend may face a range of possible punishments depending on the offence and the seriousness of it. For example, those who fail to register for service entirely (i.e. from age of 16.5 years) could face fines up to $10,000, imprisonment up to 3 years, or both.[25] The range of possible punishments are:
·imprisonment for up to 2 years under the Singapore Armed Forces Act[26], or
·fines of up to $10,000, imprisonment for up to 3 years, or both for failing to return to Singapore after an exit permit expires[27], or
·being charged for AWOL[28], or
·detention in the detention barracks (DB) – one person reported receiving 40 days’ DB for being AWOL since 2018.[29]
[25] Serving Singapore Western Independent, 24 November 2022- Accessed 28 June 2024.
[26] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 24 June 2024
[27] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 24 June 2024
[28] National Service (NS) Reservist in Singapore: What to Know 9 January 2022 – Accessed 24 June 2024
[29] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 28 June 2024; Anyone AWOL Reservist – Reddit – Accessed 24 June 2024
Discrimination based on sexual orientation is officially not tolerated in the Singapore Armed Forces.[30] However, individual experiences may differ. Some gay servicemen choose to come out during their service while others prefer to keep their sexuality private. The decision is considered highly personal and up to the individual to decide. Reactions from servicemen can vary. Some gay servicemen have reported positive experiences, finding acceptance among peers and even dating advice from fellow soldiers.[31]
Claims of harm in Singapore – including during National Service
[30] ‘Would Gay Men Come Out In National Service If They Knew Their Captain Was Gay?’ Shabana Begum 15 July 2017 – Accessed 24 June 2024; ‘Regarding NS as a gay: all forms of advice greatly appreciated’ – Reddit – 2012- Accessed 24 June 2024.
[31] ‘Regarding NS as a gay: all forms of advice greatly appreciated’ – Reddit – 2012- Accessed 24 June 2024.
During the hearing, the applicant made a new claim that he had run away before completing the compulsory 2-year NS in Singapore, had been caught by the military police and had been put into military prison where he had been bullied and it was torture for him. I pointed out that under the Migration Act[32] I was to draw an inference unfavourable to the credibility of the claim if I was satisfied that he did not have a reasonable explanation as to why this new claim had not raised before the delegate made the primary decision. I asked the applicant why he hadn’t previously raised this claim given he had apparent opportunities to do so. He replied that he ‘did not know what to do’. He thought that when he appealed, he ‘could lay out everything’. I consider that if this new claim had in fact occurred, the applicant would have ensured it was included in the protection visa application when he was turning his mind to what had happened to him in Singapore and was presenting his claims for protection in Australia. He did not do so. I acknowledge the applicant has said that he detailed his claims for protection to [Mr A], who then wrote out the application form. However, the applicant did not assert that this claim was told to [Mr A] but then omitted from the protection visa application. It is also apparent from the delegate’s decision record that the applicant did not raise this (new) claim with the delegate when discussing his NS experience. In all these circumstances, I am satisfied that the applicant does not have a reasonable explanation of why this claim was not previously raised before the delegate made the decision to refuse the protection visa. Accordingly, I do not accept the new claim that the applicant ran away before completing the 2-year compulsory NS, was caught by the military police, and was put into a military prison where he was bullied, and it was torture for him. I consider that the applicant has done himself no favours in fabricating this new claim and has potentially undermined his application by giving untruthful evidence about his NS experience. I accept the applicant’s previous evidence that he completed the compulsory 2-year in Singapore.
[32] Section 423A(2).
As I noted to the applicant, he has made no claims of any physical harm having occurred to him in Singapore. The applicant told me that he was discrete in meeting gay partners. However, despite this, I accept that that on occasions he may have felt that he was being made fun of, gossiped about, criticised and that this made him feel stressed. While I accept that this attention would have been unpleasant to experience, I don’t consider that these experiences in Singapore individually or cumulatively amounted to serious or significant harm.
Departure from Singapore
The applicant claims that he left Singapore to be with his [Country 1] boyfriend, because he wanted privacy and freedom for their relationship and to further his career. [Mr A] planned for them to come to Australia as tourists and have fun here together. I accept that the applicant left Singapore for all these reasons – but not in response to a present fear of serious or significant harm.
Fears about returning to Singapore
The applicant claims that as a gay man he cannot live a gay life in Singapore. During the hearing, I referred to country information, set out above, noting that this did not seem to be the case at all. While acknowledging that homosexuality had been illegal at the time the applicant left [Country 1], I observed that at that time the law had not been invoked since 2007. Further, Singaporean community attitudes had become increasingly more accepting of the LGBTQI+ community over time and, even at the time the applicant left Singapore, had been more accepting of the range of sexual orientation within their communities. With the repeal of s 377A in 2022 there has been even more acceptance of homosexuality in the community and workplace. I do not accept that the applicant can’t live a gay life in Singapore.
I accept that even though the applicant does not follow any religious practices, he could be identified as a Muslim, for example by a name. Country information indicates that Singapore is officially tolerant of different religions. Further, all Singapore citizens, regardless of their sexual orientation, are free to pursue their activities in their private space. Public attitudes have become even more liberal and accepting since the applicant left Singapore in December 2017. There are laws in place to protect all citizens from discrimination and harassment no matter what their sexual orientation or religion. I do not accept that the applicant can’t live a gay life in Singapore because he is Muslim.
Homosexuality is no longer illegal in Singapore. Community attitudes towards homosexuality are more liberal and accepting community attitudes. Laws are in place to prevent harassment or discrimination. However, despite all of that, I accept that it is still possible on occasions the applicant may feel insulted, being made fun of or criticised. For example, this could happen following public displays of affection with another gay man. However, to put this possibility in context, and as pointed out to the applicant during the hearing, Singapore is a generally conservative society where everyone is expected to engage in reasonably modest and private behaviour. As stated in the country information set out above, all Singapore citizens, regardless of their sexual orientation, are free to pursue their activities in their private space. In any event, although such an experience would be unpleasant for the applicant, I find that it would not amount to serious or significant harm.
The applicant made the written claim that he would not be allowed to marry his boyfriend in Singapore. This claim was made before the applicant’s long-term relationship with [Mr A] ceased so no longer currently relevant to the applicant’s circumstances. I acknowledge that homosexual partners are not yet allowed to marry in Singapore despite the repeal of s 377A. While this can be seen as an unfair and unequal restraint on a gay couple living in Singapore who wish to marry, I find that it does not amount to serious or significant harm.
The applicant told me he hates Singapore. The people there are mean, judgemental and small-minded. He does not feel respected. He will feel like a ‘loser’ if he returns to Singapore. He will have no social life there. He loves Australia and wants to stay here where feels accepted. I accept that the applicant feels this way about Singapore (and Australia). I also acknowledge that it would take a period of adjustment for the applicant, after living away for so many years in Australia, to feel comfortable in Singapore. However, I find that none of these feelings that the applicant has expressed amount to serious or significant harm.
The applicant claims that if his father finds out about his sexuality, he will disown him. He also claims that no-one cares about the applicant in Singapore. However, the applicant has told me that he has had no ongoing contact with his father. While this is unfortunate, it indicates to me that they have already been estranged for many years. Further, the applicant told me that he is very close to [specified siblings] there, so I take it that they do care for him. Given the applicant’s evidence about his family relations, which I have accepted, I don’t accept his claims that he will be disowned, and no‑one cares about him.
NS reservist duties and liabilities
The applicant claims that if he returns to Singapore, he must undertake compulsory annual reservist NS. Given the country information set out above, I accept that this is the case and that he may be required to do it for up to 40 days a year. The applicant claims that he may be given rifleman duties, which I also accept may be the case. He has described this as ‘tough training’ and expressed doubt that he could do it. However, he also told me that he worked for a while doing [occupation 3] in Australia, which was ‘very hard labour’. So, I consider that the applicant could also do the ‘tough training’ as a rifleman, if required to. In any event, I find that performing NS rifleman duties, even if they are onerous, would not amount to serious or significant harm.
The applicant also claims that he will be bullied, harassed, or tortured in doing future NS reservist training because he is gay or a gay Muslim. As previously noted, I have found that the applicant fabricated his claims about his NS experience (i.e. that he ran away before finishing the 2-year NS, being caught by military police and being put into a military prison where he was bullied, and it felt like torture. I consider that these about what would happen to him doing future NS reservist training are also fabricated. Further, as I explained to the applicant, country information indicates that discrimination based on sexual orientation is officially not tolerated in the Singapore Armed Forces, and gay men are accepted and report feeling accepted in undergoing NS duties and some have reported positive experiences. I do not accept that the applicant’s claims that he would be bullied, tortured or feel like being tortured in completing his future reservist duties in the NS because he is gay (or a gay Muslim).
The applicant also claims that he will be punished by the authorities on his return because he has not been doing his required on-going annual NS reservist training since he left Singapore. Given the country information set out above, I accept that he may be investigated and consequently may face some form of punishment. However, as I pointed out to the applicant, NS reservist duties and liabilities apply to all Singapore NS-liable men, not just the applicant and not because he is gay or a gay Muslim. I will return to this issue later in this decision.
Self-harm
The applicant told me that he may commit suicide if he returns to Singapore. This is a disturbing claim for any decision-maker to consider. I also note that it is a new claim and there are no previous claims of him experiencing depression before me. I accept that the applicant doesn’t want to return to Singapore and that he is happy here and has plans for a future in Australia. However, I have already found that the applicant fabricated claims of being captured by military police whilst on the run from NS duties, imprisoned and feeling tortured. I consider that the applicant is also fabricating this claim of self-harm. I understand that the applicant wants very much to remain in Australia. I acknowledge that it would take some period for the applicant to readjust to life in Singapore. However, as I also pointed out to the applicant, by coming to Australia and working so hard as he has, by surviving the COVID-19 lockdowns and moving residences many times, including interstate, he has demonstrated great resilience and determination. He has saved money. Also, and as mentioned to the applicant during the hearing, given Singapore’s booming economy, there are ample employment opportunities for him. And while the applicant is not close to his father, he has [specified siblings] there with whom he is close. In all these circumstances I don’t accept the applicant’s claims of self‑harm or suicide.
I make the following relevant findings of fact:
·The applicant is a gay man from Singapore who came to Australia with his [Country 1] partner, [Mr A], from whom he separated in Australia. The applicant is a non-practising Muslim.
·The applicant has on occasions experienced people talking about him, criticising him or laughing at him and this stressed him.
·The applicant did not flee persecution in Singapore. He came to Australia as a tourist for privacy and freedom to be with his then boyfriend, and because want to plan a career in Australia.
·The applicant completed the compulsory 2-year NS in Singapore and remains liable for on-going NS commitments on his return to Singapore.
·The applicant may face an investigation and possible punishment for missed reservist NS duties (including non-compliance with any applicable exit permit) on return to Singapore.
Assessment: Refugee criterion
I will now assess whether, in light of all the above findings of fact, and having regard also to other relevant factors – in particular, country information about the treatment LGBTQI+ individuals in Singapore, as well as the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Singapore (for reason of his membership of the particular social group of gay men in Singapore, or gay Muslim men in Singapore or for any similar reason set out in s 5J(1)).
Homosexuality-Muslim
Country information indicates that homosexuality is no longer illegal and there has been growing acceptance of LGBTQI+ individuals and their community over the past decade. Further, Singapore strives to be seen as an open and tolerant culture where everyone is free to pursue activities in their private place. The February 2021 UN National report Singapore[33] states:
Singapore also takes steps to protect members of the LGBTI community against discrimination. For instance, the Government ensures that persons seeking a job in the civil service are not discriminated against on the basis of their sexual orientation. [The Protection from Harassment Act] also enables victims of harassment to obtain protection orders more easily. Notably, the 2019 [the Maintenance of Religious Harmony Act] amendments make it an offence to knowingly urge violence against persons and groups on the grounds of religion or religious beliefs. This protection is accorded to both religious groups and non-religious ones, including the LGBTI community.
[33] Submitted in accordance with para 5 of the annex to Human Rights Council resolution 16/21.
Despite these more liberal attitudes and legal protections, I have accepted the possibility that the applicant may on occasions be talked about, insulted, criticised or teased. However, I don’t accept that these experiences either individually or cumulatively amount to serious harm, as indicated in the examples set out in s 5J(5).[34]
[34] See Attachment (a threat to the person’s life or liberty, significant physical harassment of the person; significant physical ill‑treatment of the persons; significant economic hardship that threatens the person’s capacity to subsist, or denial of access to basic services, where the denial threatens the person’s capacity to subsist, denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Given all the applicant’s evidence, including coming to Australia as a tourist to have fun and be with his [Country 1] boyfriend, for privacy and freedom for their relationship and to further his career, I have found that he does not have a genuine fear of persecution based on his past experiences in Singapore. I have also considered the applicant in regard to the current situation in Singapore in regard to the applicant. I don’t accept that he faces a well-founded fear of persecution on account of being gay or being a gay Muslim in Singapore.
National service
The applicant also claims that he will come to the attention of the NS authorities regarding missed annual reservist NS obligations. Based on the country information set out above, I accept that may be the case and the applicant may be investigated. If this did occur, the applicant could face some sort of punishment as set out in the country information, for example, one person reported receiving 40 days’ DB for being AWOL since 2018. [35] On the face of it, this liability could be seen as a threat to the applicant’s liberty and therefore possibly amounting to serious harm under s 5J(5)(a) of the Act.
[35] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 28 June 2024.
I note that the NS laws apply only to all NS-liable men in Singapore, i.e. not to women. This suggests that the NS laws are discriminatory, rather than laws of general application.[36] However, it is well-established in Australian caselaw that even if a law results in discriminatory treatment, this will not necessarily constitute persecution. Where a law results in discriminatory treatment of persons of a particular race, religion, nationality or political opinion or who are members of a particular social group (i.e. NS-liable men in Singapore) the question of whether the discriminatory treatment constitutes persecution for that reason depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the [relevant] country’.[37] Whether a law, or its enforcement, is ‘appropriate and adapted’ to achieving a legitimate object requires consideration of proportionality of the means used to achieve that object.[38] A legitimate object is usually one which is required to protect or promote the general welfare of the State and its citizens. While the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the object and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.[39] As noted in the country information set out above, NS laws and obligations are seen as crucial for Singapore’s defence, security and national identity.[40] I consider that these are reasonable and necessary objectives. I find the NS laws, while placing additional burden on men regarding enforcement of on-going NS duties, are appropriate and adapted to achieve legitimate objectives of Singapore. I find that there is no persecution of the applicant regarding the possible punishment he may receive in regard to missing his on-going reservist NS obligations.
[36] Enforcement of a generally applicable law doesn’t ordinarily constitute persecution because enforcement of such a law doesn’t usually constitute discrimination. Applicant A v MIEA (1997) 190 CLR 225 at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]
[37] Applicant A v MIEA (1997) 190 CLR 225, at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45]. Applicant S v MIMA (2004) 217 CLR 387.
[38] Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]
[39] Applicant S v MIMA (2004) 217 CLR 387 at [44]
[40] National Service Through the Years – Singapore Government Agency – Accessed 24 June 2024.

I have considered the applicant’s claims individually and cumulatively. I am not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s 5J(1), now or in the reasonably foreseeable future, if he returns to Singapore.
Given all of the above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion
I have also considered whether, on the evidence before me, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Singapore.
Homosexuality-Muslim
I have considered the above findings of fact and my view of the applicant’s future conduct and country information about the treatment of LGBTQI+ individuals in Singapore, including as a gay Muslim man. Singapore is a secular and religiously diverse country. Homosexuality is not illegal in Singapore and there are laws in place to prevent discrimination or harassment. I have acknowledged nonetheless that the applicant may experience being insulted, talked about and laughed at and I acknowledge that this could be unpleasant for the applicant. However, in looking at the applicant’s claims and circumstances I conclude that there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. I am also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
National Service
I accept that the applicant may be investigated and depending on that outcome, he may face some sort of punishment for missed reservist NS duties. It is possible that he could be detained or fined, or both. For example, the country information set out above, noted that one person reported receiving 40 days’ DB for being AWOL since 2018.[41]
[41] National Service (NS) Reservist in Singapore: What to Know 19 January 2022 – Accessed 28 June 2024.
In considering whether such a fine or detention in Singapore would amount to significant harm for the purposes of the complementary protection criterion in s 36(2)(aa), I have had regard to the exhaustive definition of ‘significant harm’ in s 36(2A) as follows:
(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.
As discussed with the applicant during the hearing, the complementary protection criteria are concerned with harm deliberately perpetrated on another person by way of intentional acts or omissions.[42] I find that a fine and or detention lawfully imposed on the applicant for missed NS services does not constitute arbitrary deprivation of life; cruel or inhuman treatment or punishment; degrading treatment or punishment or torture. The applicant doesn’t claim that there is a risk that the death penalty will be carried out on him.
[42] GLD18 v Minister for Home Affairs [2020] FCAFC 2.
I find the possibility of lawful sanctions for missed reservist NS duties does not meet the definition of significant harm as exhaustively defined in s 36(2A).
Self-harm
The applicant claims that he may commit suicide if he is returned to Singapore. However, for the reasons already outlined above, I have not accepted the claim. There is no evidence of previous depression before me. To the contrary, the applicant presents himself in a confident, uncompromising and, as noted during the hearing, resilient manner. In any event, I note that the descriptions of the types of significant harm in s 36(2A) are set out as being arbitrarily deprived of their life, the death penalty being carried out on them and harm that they will be subjected to. The Federal Court of Australia has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[43] It does not therefore capture self-harm.[44] And so, although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
[43] GLD18 v MHA [2020] FCAFC 2 at [37].
[44] CHB16 v MIBP [2019] FCA 1089 at [65]–[68] and CSV15 v MIBP [2018] FCA 699 at [34].
l find no other ground that suggests the applicant will be subject to significant harm if he is returned to Singapore.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Singapore, there is a real risk that he will suffer significant harm: s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phillippa Wearne

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 3528

12 July 2024

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