2018109 (Refugee) - [2021] AATA 1640

2018109 (Refugee) [2021] AATA 1640 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2018109
COUNTRY OF REFERENCE:                   Malawi
MEMBER:Meena Sripathy
DATE:13 May 2021
PLACE OF DECISION:  Sydney
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 13 May 2021 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Malawi – Federal Court remittal – member of particular social group – homosexual or bisexual man – arrived in Australia on orphan relative visa – alcohol and drug use, homelessness, imprisonment and immigration detention – visa cancelled and affirmed – relationships with women, and one child from one relationship – casual relationships with men before one ongoing relationship – hiding of sexuality and relationship from all but one family members – support of brother and partner’s family, friends and colleagues – credibility – no mention of homosexuality to psychologists or during visa cancellation and review – limited oral evidence from applicant but full evidence from partner – country information – legal, religious and community stigma, harassment and violence – applicant’s limited education, work skills and experience, and no family or social support in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 dependant.
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 7 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malawi, applied for the visa on 4 October 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied, on the evidence before the Department, that the applicant’s claims were credible and on this basis did not accept that he feared harm on return to Malawi on the basis that he was homosexual as claimed. The delegate was not satisfied he was a refugee as defined by s5H(1) or that there were substantial grounds for believing that there was a real risk he would face significant harm as defined in s36(2)(aa) for this or any other reason and therefore was not satisfied that he met the complementary protection criteria.
The applicant lodged an application for review of this decision to the AAT on 18 November 2018. On 9 January 2019 the AAT (differently constituted) determined that it had no jurisdiction to review the decision because the application was lodged outside the prescribed period to apply for review.
On 5 November 2020, that decision of the AAT was quashed by the Federal Court on the basis of a finding that the delegate’s notification was invalid, and the application for review to the Tribunal was remitted to be considered according to law.[1] The matter is now before the Tribunal pursuant to the Court’s order and the Tribunal accepts jurisdiction in relation to the review.
[1] ALN19 v MICMSMA [2020] FCA 1592
The issues in this case are whether there is a real chance, if the applicant returns to Malawi, he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malawi, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year old Malawian national. He indicates his relationship status as de facto since October 2015. In Australia he has a partner, a [age] year old son, brother, aunty and uncle, [cousins] and a niece. His parents are deceased. He arrived in Australia in 2004 on an orphan relative visa, departing legally from his home country on his own passport. He indicates he lost his passport and has no current passport or travel document.[2] The applicant was in [an Immigration] Detention Centre from 8 December 2017 and remains in immigration detention. He previously resided in [Suburb 1] from 2004 to 2012, was homeless for a period between 2012 and 2015 and provided a residential address in [Suburb 2] from 2015. He completed up to Year [level] high school education and has done some TAFE courses while in custody of the Department of Corrective Services.
[2] A copy of his last held passport, issued [in] 2003 and expired [in] 2013 is included in the Department documents provided to the Tribunal: [file number]
In his responses to questions about the reasons for seeking protection the applicant provided the following information in his application: he will have no prospects for a safe and secure future in Malawi because it is a hostile country for gay men and homosexuality is illegal. Many people in Malawi have HIV. If the authorities discover he is gay he is potentially facing 14 years imprisonment with hard labour. Violence and prejudice towards gay people is high and widespread tin the whole community. Having grown up in Australia he cannot imagine how he can survive or even get a job with that level of persecution and attitudes. While he did not experience harm in the past in Malawi he was too young at that time. He won’t be protected by the authorities because they are the ones that declare homosexuality illegal and they won’t be sympathetic to his sexuality.
In a separate letter dated 21 September 2018 the applicant provided the following information:
·He came to Australia in 2004 on an Orphan Relative visa sponsored by his brother and aunty. His brother has lived in Australia for 20 years.
·While in custody and detention he has had time to think about the seriousness of his situation and rehabilitate from his alcohol and drug use which was the main reason for his offending. He started to turn his life around by pursuing extra courses and trying to be the best person he could be. He is truly sorry for his past offences.
·He first met his partner [Mr A] in 2015 where he works at the [business]. He would ask him for cigarettes and loose change. The applicant was homeless at the time and living on the street and [Mr A] would help him out.
·They met up again on the gay strip [and] started having a physical relationship.
·After that he started going back to [Mr A]’s place in [Suburb 2] and [Mr A] started helping him with accommodation and made sure he had an Opal Card.
·They started living together as a couple and he considered him his partner. He was therefor him during difficult times and the applicant tried to make [Mr A]’s life comfortable by keeping the house clean and making meals.
·He introduced the applicant to some of his friends and they went to Mardi Gras together. The applicant met [Mr A]’s family and they were supportive of the relationship.
·They spent Christmas together with his family in [Suburb 2] and exchanged presents.
·The applicant was always afraid his son [Master B] and friends would find out about his sexuality.
·He told his brother and he has been supportive and positive which was a big relief for him.
·He is terrified if he is deported to Malawi his life would be in danger as homosexuality is illegal there, same sex couples are not recognised and violence towards gay me and homophobia is a daily threat. There is a high threat of HIV/AIDS also and because of the illegality of homosexuality , it is difficult to fight this disease.
·Since he has someone special in his life and no longer feels alone it has helped him get his life together and take steps to achieve his goals and be a valuable member of the community.
The applicant submitted various documents with his application including: correspondence from Centrelink dated April – June 2017 showing an address in [Suburb 2], bank statements for periods in 2017-2018 showing the [Suburb 2] address, and a copy of the National Police Certificate setting out his criminal record.
He also submitted letters of support from various individuals who attest to their knowledge of the applicant and his partner and their genuine relationship. Included among the support letters submitted are letters from the applicant’s brother, his partner’s [sister], and a number of close and long term friends, neighbours and work colleagues of the applicant’s partner. All attest to their knowledge of the applicant’s sexuality and relationship with his partner.
A letter from the applicant’s partner, [Mr A] dated 11 September 2018 sets out details of how he came to meet the applicant in 2015 and the development of their relationship and their circumstances while living together until he was taken into criminal custody and subsequently, immigration detention. [Mr A] writes of his ongoing love and support of the applicant. While he has been in detention he supplies him with his needs, including providing money for his buy ups, mobile phone recharge, etc and provides receipts as evidence. He continues to buy items (clothing, shoes) for the applicant in anticipation of his release and return home.
The applicant was invited to attend an interview to discuss his protection claims on 26 October 2018 but he failed to attend.
On 30 October 2018 the Department sent the applicant a letter, pursuant to s56 of the Act, requesting more information. No response was received to this request, and on 7 November 2018 the delegate refused the application on the basis of not being satisfied on the available material, of the credibility of his claims to be homosexual and fearful for his life upon return to Malawi on that basis.
On 28 November 2018, after the delegate finalised the decision, the applicant’s partner [Mr A], forwarded a response from the applicant to the s56 letter. He explained why he did not attend the protection visa interview and provided responses to the delegate’s specific questions relating to his protection claims. He states that he is attracted to men and women and people. His partner is a man. He was previously been in relationships with women, and the last relationship was with the mother of his son. They broke up and he moved to the city. He was curious about sex with men and started hanging around the areas where gay men meet. He had hook ups with 3 or 4 men before he met [Mr A]. Their relationship started as physical and he grew to having emotional feelings for him. They have been together ever since. They lived together for 2 years and have kept the relationship going while he has been in gaol and detention. They speak daily. The applicant stated that he did not want anyone to know about his sexuality because he was scared of the reactions of his family. He has only told his brother and is happy that he has taken it so well. His brother encouraged the applicant to not hide his sexuality and has been supportive.
Evidence before the Tribunal
On 16 March 2021 the Tribunal received a submission and the following supporting material on behalf of the applicant.
·Statement of claims of the applicant dated 16 March 2021
·Statutory Declaration of [Mr A] dated 15 March 2021
·Attachment detailing photos of parcels and good sent to the applicant while in detention
·Statutory Declaration of [Mr C] dated 16 March 2021
·Submissions of the applicant’s representative, [Ms D], NSW Legal Aid Commission
·Arcus Foundation, Data Collection and reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda (January 2019, updated October 2019)
·Copy of the UK Home Office Country Background Note: Malawi (October 2020)
A copy of the decision not to revoke the cancellation of the applicant’s Class AH (Subclass 117) (Orphan Relative visa, made by the General Division, Administrative Appeals Tribunal, on [date], published as [citation redacted], was before the Tribunal.
Face to Face Hearing, Sydney AAT, 23 March 2021
At the hearing the applicant confirmed he is currently in immigration detention, where he has been since December 2017. Prior to that he was in gaol at [Town 1], NSW for around 6 months. While he was in gaol his visa was cancelled. He sought revocation of the cancellation and when it was not revoked, he appealed that decision to the AAT. He was not represented during this process.
Regarding the invitation to attend a Department interview in relation to the present application, and why he did not attend the interview, he said he did not realise it was an interview and also he was unwell. Regarding the late response to the Department’s invitation to provide information, he said he was trying to get help.
The applicant was born in [year]. He was sponsored by his brother to come to Australia in [year] on an orphan relative visa. Apart from his brother, he has [aunties] and numerous cousins in Australia. They were all here prior to his arrival and for a long time. When he arrived he lived with his cousin, [Ms E] and her [children]. [Ms E] passed away last year. He lived with [Ms E] until he was around 17 years old, and then left to live with friends. He lived at several address around [Suburb 3] and [Suburb 4]. Following this he returned to live with [Ms E] for a period and left again when he was involved in a relationship with [Ms F], the mother of his son, to live with them. His son was born in [year]. The applicant left his then partner, [Ms F] and son, [Master B], when [Master B] was around 2 or 3 years old. In this period he had no fixed address and was homeless until he met [Mr A] and started living in [Suburb 2]. The applicant said he was back in contact with his cousin [Ms E] about 8 months before she passed away. He contacted her by telephone because his brother told him she was ill. He said he is also in regular contact with his aunty [Ms G] and cousins on Facebook. They were all aware of his problems in the criminal justice system and immigration detention.
The Tribunal asked if he was in contact with his family while living in [Suburb 2]. He said he was not during that period. The Tribunal asked about his contact with his son [Master B]. He said he started contact with him about 6 months ago, by phone. His brother gave his number to [Ms F] and she got in contact because she wanted him to speak to his son. Before that he had little contact. His brother has a regular relationship with his son, seeing him every two weeks or so. The applicant said the last time he saw his son was with his brother. He sometimes called him when [Master B] was staying with him. The applicant said he has maintained contact with his brother throughout the time he was in gaol and immigration detention. He was distanced from his family during the period he had problems in the criminal justice system.
Regarding his past work history, he left school in Year [level] and started working in [work sector] for several years. His last job was in 2013 and he has not worked since then. Around this time he started having problems with alcohol and stopped going to work and didn’t have a stable place to live. He has not worked since then.
The Tribunal discussed the applicant’s protection claims. He said he had a relationship with [Ms F], the mother of his son, from around the age of 17 years, until he was around 21 years old. She was about 18 years old. That relationship ended because he was not working. He had not had any relationships with women before [Ms F] or after [Ms F]. When asked when he started feeling attraction to men he said he started hanging around the city, and Oxford St in particular. He met a man called [Mr H] who took him to a club where gay men went. At this time he had no fixed place to stay. He met a man called [Mr I] and went to his place a few times.
He met [Mr A] at a place called [venue]. He invited him to his place. [Mr A] was nice to him and he continued to see him over the next 8 months to a year before [Mr A] asked him to move in. [Mr A] knew about his issues with the criminal justice system and that he had problems with alcohol and drugs. He tried to get him help and to see a psychologist. He saw this psychologist about twice before he was taken into custody. He didn’t discuss the topic of his sexuality with the psychologist. When asked why, he said he was seeing him because of his issues with alcohol.

The Tribunal asked the applicant about [Dr J] and why he saw him. He said [Mr A] suggested it and [Dr J] tried to get him into a rehabilitation program but it was unsuitable for him. [Dr J] also referred him to a psychologist but he cannot recall the name. The applicant said he never talked about his sexuality or sexual health with him either.
The Tribunal asked the applicant about his knowledge of [Mr A]’s family. He knew about [Ms K], his [sister] who he is very close to. She lives in [Suburb 5] and he has met her a few times. He also has parents and another sister. He has met the mother once when she came over. When asked if he has met any of [Mr A]’s friends, he said he met one but can’t remember his name, he lives in Melbourne but comes and stays every December. He hasn’t met anyone else. [Mr A] is a quiet person and keeps to himself.
The applicant said he went to Mardi Gras once with [Mr A] in 2016 but he didn’t like being in the big crowds so he left soon after and [Mr A] stayed on.
The Tribunal asked about how his brother came to know about his sexuality. He said when he was in gaol [Mr A] was ringing a lot and his brother got suspicious and eventually asked [Mr A], who told him. Then his brother rang him and asked him if it was true that they were in a relationship. He acknowledged it and his brother told him he was okay about it. He asked if that was why he avoided his family.
The applicant has not told his aunty or cousins. They are very religious and it would not be acceptable to them. He has not talked about the issue of his sexuality in gaol or in immigration detention. He has seen psychologists every 6 months or so but has not raised with them.
He told the Tribunal has had no relations with anyone since he has been in detention.
The Tribunal asked the applicant how he describes his sexuality now. He said he really likes his relationship with [Mr A]. He doesn’t talk about it with anyone in the detention centre because it might put him in jeopardy with others there. The Tribunal noted that in recent statement he referred to identifying as ‘bisexual’ and asked if he is still attracted to women? In response he said not really any more. His attraction to women and girls is not as strong as it used to be.
When asked why he is afraid to return to Malawi, he said it is because of his relationship with [Mr A]. It is unacceptable there and if it comes out he will be in danger. He fears people finding out that he likes men. It will put him in danger. He will be forced to live a life that is not him. He is also afraid it will affect his family members there if it becomes known that he is this way.
The Tribunal noted that he never mentioned the issue of his sexuality in his appeal about the cancellation of his visa. It put to him that in relation to the exercise of the discretion he was asked if there was any reason he feared returning and he never mentioned this reason. He said he didn’t think it was relevant. Afterwards when his brother found out about his relationship with [Mr A], his brother told him it was relevant and that is when he put in his protection visa application.
Evidence from [Mr A]
[Mr A] told the Tribunal he identifies as gay and has done so for 30 years. He had two long term relationships in the past with male partners, each lasting around10 years. The last one was with a [Country 1] man, they broke up around 7 years ago. He is now in a relationship with the applicant. They met when he was working his [job] at [business] in 2015. He had previously seen him around on Oxford St. They would chat and it developed from there. He invited him to his place not long after. He observed that the applicant was scared of people and tentative.
When asked if he was aware of the applicant’s sexuality or relationship history, he said he knew he had been out and about on Oxford St amongst the gay community. He saw that he was obviously homeless and had issues going on. The witness said he was trying to help him. He tried to help him get a job, see a psychologist and deal with his alcohol issues. Early on the applicant shared with him about his son.
After about 4 months he asked him to live with him. He knew he had court hearings and wanted to give him some stability. He could see the applicant was struggling and had no parental or family support and had issues with substance abuse and alcohol. He could relate to all that and wanted to help him. He also saw that he was struggling with his sexuality given the cultural issues and his role as a man and a father.
He met the applicant’s brother about a year later when he brought his son for a visit. This happened a few times before he was taken into custody. The witness supported him through the court proceedings and tried to help him by getting a psychologist.
The applicant met his family including his mother and sisters, at Christmas 2016. He has also met several other friends of his, [Mr L] a long term friend and [Ms M] a work colleague.
About a year ago the witness told the applicant’s brother about their relationship. He told him after the visa cancellation decision. When asked why he didn’t mention it during that process, the witness said the applicant was scared of his family’s reaction.
The applicant lived with him for a couple of years before he went into gaol in June 2017. He was trying to get his life together.
Regarding their relationship, the witness said he hasn’t declared the applicant as a partner in any official contexts. He hasn’t named him as a beneficiary on his superannuation. They went to Mardi Gras together once in 2016 but the applicant was feeling uneasy with the crowds and left early. They haven’t attended other events together, other than having dinner.
The witness said it is very difficult for the applicant to accept being in a relationship with him because of his family and culture but they were living together as a couple.
When asked if he is aware if the applicant had relationships with men prior to him, he said he knew he had seen men casually before and had seen him with a man called [Mr I] before him.
The witness is in daily contact with the applicant in detention via mobile. He never discussed his sexuality with him in detention. The witness fears the applicant will be at risk of harm in Malawi because of his sexuality as it is not acceptable and illegal there. The witness said if he was not in detention he would continue to support him and help him get a job.
He has helped him throughout the time he has been in detention, calling him, sending him things. When asked why, he said because he is his partner and he cares for him.
Evidence from [Mr C]
The applicant is his brother. He sponsored him to come to Australia in 2004 and he lived their cousin until he was 18 or 19 years old. The witness left to live with another relative when the applicant was about 15 or 16 years. They were in regular contact through the family until the applicant moved out.
The witness knew the applicant’s previous partner [Ms F] and their son born in [year]. He doesn’t know the details of why they broke up. The witness regularly sees the applicant’s son, every 6 weeks or so for a weekend.
The witness became aware the applicant was living with [Mr A] in [Suburb 2] but didn’t know at the time the context of that arrangement. He now knows. He never visited him in [Suburb 2] or brought his son there.
The Tribunal asked how he came to know about the applicant’s sexuality. He said while going through the visa cancellation appeal process, [Mr A] was there giving evidence. He eventually told the witness why he was so involved in the case. The witness said he didn’t expect it at all but it suddenly all made sense – why his brother had cut off from the family. He was surprised because he had no sense of it previously.
The witness confirmed that the matter of the applicant’s sexuality was not mentioned in the visa cancellation process because the applicant was so scared of the family’s reaction. It is a very difficult thing to mention in their culture and family. When he learned about it he felt very sad for the applicant and also guilty that if he had been able to help his brother he may not have done so many bad things.
The witness said apart from him no one in the family knows about the issue of the applicant’s sexuality.
When asked what he fears for the applicant if returned to Malawi, the witness said that it is unacceptable there for him to be in a relationship with a man or identify as gay.
When asked why he believes the applicant is gay, the witness said he cannot question it. He said a lot of what his brother has done now makes sense. They have not really talked about it because he knows it is hard for him to talk about it. The witness said regardless, he has and will continue to support his brother.
On 7 April 2021 the Tribunal received a post hearing submission from the applicant’s representative and supporting evidence. The supporting evidence comprises screenshots of communications between the applicant and [Mr A] for periods from 2019 - to date; Telstra invoices, applicant’s bank statements addressed to him at [Mr A]’s address and photos of the couple taken prior to his detention. The written submissions address the applicant’s evidence at hearing, highlighting that while not explicit in stating that he identifies as homosexual, he clearly stated that his attraction to women is not as strong as it used to be. It is submitted that sexuality can be fluid and the material issue before the Tribunal is that a characteristic of the applicant’s sexuality is an attraction to men and this is the basis of his fear of return to Malawi. Submissions were also made regarding the applicant’s demeanour and manner during the hearing, and the issue of the delay in raising the claim and failure to mention it in the visa cancellation process. Reference is made to the further supporting evidence attached and it is submitted that this evidence supports the claim that he is in a relationship with [Mr A], is sexually attracted to men and would be at risk of harm in Malawi as a result of his attraction to members of the same sex.
FINDINGS AND REASONS
In coming to its decision, the Tribunal has taken into account the information now before it, including his application for the Protection visa and documents he provided to the Department to support his claims, the oral evidence of the applicant and his witnesses provided to the Tribunal in a face to face hearing, and the evidence and the pre and post hearing submissions made by the representative to the Tribunal in support of the review. It has also had regard to independent information relating to the treatment of LGBTQI persons in Malawi.
Nationality
On the basis of the evidence of the applicant’s last held (now expired) passport and his oral written evidence, the Tribunal finds that he is a citizen of Malawi and Malawi is his country of nationality for the purposes of this assessment of protection obligations.
Findings of fact – credibility of applicant’s claims relating to sexuality
The applicant claims he is currently, and has been, in a relationship with a man in Australia, is sexually attracted to men and he fears harm if returned to Malawi on the basis of his sexual orientation and that he would be unable to live the life he wants to live there.
When assessing claims the Tribunal must make findings of fact in relation to the claims. The task of fact-finding often involves an assessment of an applicant’s credibility. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. In addition, assessing claims relating to sexuality and sexual orientation can be particularly difficult, sensitive and complex because of the personal nature of the claims and lack of supporting evidence. Often the only evidence available is the applicant’s claims and testimony. The Tribunal recognises that there can be a diversity of individual experiences of sexuality and differences related to culture, socio-economic and education background and other factors. The Tribunal needs to be sensitive and appropriate in the manner in which it explores these issues and the benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In making its findings the Tribunal has had regard to the above. It also, unlike the delegate, had the opportunity to question the applicant at a face to face hearing, and obtained oral evidence in person from his claimed partner, [Mr A] and telephone evidence from his brother. Further supporting evidence and submissions were also provided by the applicant’s representative.
For the reasons explained below, the Tribunal accepts the applicant’s claim regarding his same sex attraction and that he is, and has been, in a same sex relationship with [Mr A].
The applicant’s oral evidence at hearing was not very expansive nor particularly convincing on the issue of his sexual orientation. His responses to the Tribunal’s questioning were brief on detail and gave the Tribunal little insight into the nature of his journey relating to his sexuality and sexual orientation. He has a history of a past relationship with a woman, from which he has a child, and given this context the Tribunal struggled to get from him a convincing explanation for his current claimed sexual orientation. However, taking into consideration the matters mentioned above about the complexity of assessing sexuality claims, the Tribunal is prepared to accept that he was not being deliberately evasive or hesitant but rather that his responses were consistent with his general demeanour and non loquacious personality in light of his responses to more general questions asked by the Tribunal. It also takes into consideration, in assessing his evidence, the circumstances of his background of limited education and history of drug and alcohol issues, and for all of these reasons, does not draw an adverse inference on the basis of his less than convincing oral testimony alone.
There were, however, other matters that raised credibility concerns for the Tribunal. For example, the fact that he never mentioned his sexuality or any confusion, fears or issues it raised for him, to any of the psychologists he has seen in the context of his criminal justice process or while he has been in custody or immigration detention. His response when this was put to him was that when he was seeing those professionals it was for his problems with alcohol and not because of the matter of his sexuality. The Tribunal did not find this a convincing explanation and doubts the psychologist would not have explored underlying issues and concerns going on for him at this time.
Another issue for the Tribunal was that he didn’t raise the issue of his sexuality as a reason he feared return to Malawi during the appeal against his visa cancellation. His response when asked about this was that he didn’t think it relevant at that time. Both witnesses, [Mr A] and [Mr C], told the Tribunal the applicant did not speak about his sexuality as a basis for his fear of return in the visa cancellation process because of his fear of the family finding out. The applicant’s representative, in her post hearing submissions argued this was a plausible explanation in light of the circumstances that he was at that time unrepresented and would not have been advised about making sensitive and confidential claims in that process. She noted the non revocation of visa cancellation decision is published using his own name and available publicly. The Tribunal takes these points on board.
Against these concerns, the Tribunal has considered the evidence before it which supports the applicant’s claims of the relationship with [Mr A]. Most significantly, the Tribunal received oral evidence from [Mr A] who confirmed his relationship with the applicant since 2015; that they lived together for some two years before he was taken into criminal and now immigration custody; that his close family and friends have met and know the applicant as his partner; and that he is in regular communication with the applicant since his detention and has been providing him ongoing practical, emotional and financial support. The Tribunal found [Mr A] to be a credible and honest witness and accepts his oral evidence on that basis.
A substantial amount of corroborating documentary evidence is also before the Tribunal, including support letters from a range of friends, family and associates of [Mr A]. Notwithstanding that there were some inconsistencies between the content of some of the witness evidence and the applicant’s testimony about who and where he had met certain family and friends of [Mr A], the Tribunal accepts the support letters to the extent that they corroborate that close associates of [Mr A] know them to be in a relationship. The letter from [Dr J] dated 25 September 2018 refers to the applicant and [Mr A] being in an intimate relationship. There are bank statements and correspondence addressed to the applicant at [Mr A]’s address. Following the hearing the representative submitted evidence of a sample of messages, correspondence and photos of the applicant and [Mr A] indicating a history of sustained, intimate contact that supports the claimed nature of their relationship. Evidence was also provided of parcels and goods sent to the applicant while in detention by [Mr A], and evidence of financial support he has provided him while he has been detained. The Tribunal observes that [Mr A] was also present throughout, and gave supporting evidence in, the applicant’s visa cancellation process.
On the evidence before it, the Tribunal accepts that [Mr A] identifies as an openly gay man and has a history of established long term homosexual relationships. This is established by his candid and frank evidence to the Tribunal and the contents of numerous support letters submitted by his close family, friends and associates. It accepts, on the evidence, that the applicant lived with [Mr A] from around 2015 until he was remanded into criminal custody in or around mid 2017. There is substantial evidence before the Tribunal that [Mr A] has remained committed to and supportive of the applicant since that time, maintaining regular contact with him in gaol and immigration detention, sending him money and support items, strongly indicative of a partner relationship. [Mr A] told the Tribunal that the reason for his sustained and ongoing support of the applicant is because they are partners.

Therefore, notwithstanding its concerns arising from the applicant’s limited and unconvincing oral testimony, absence of corroboration in counsellor reports and late raising of the claim in this protection visa process, on the weight of evidence before it supporting the existence of the relationship with [Mr A], the Tribunal is satisfied and accepts that the applicant and [Mr A] were, and are, in an intimate same sex relationship. Without necessarily addressing all the indicia of a ‘de facto’ relationship as defined by migration law, the Tribunal is satisfied that the evidence supports that the applicant lived with [Mr A] for a significant period prior to his incarceration; he has provided the applicant substantial practical and emotional and financial support both before and since his incarceration; he is known to [Mr A]’s family and friends as his partner; and that both the applicant and [Mr A] consider themselves to be in a same sex partner relationship.
Having made the above findings relating to his relationship with [Mr A], the Tribunal is prepared to accept the applicant is attracted to men and is presently in a same sex relationship. It acknowledges that, while he initially claimed to be ‘bisexual’ he now characterises this as ‘having a less strong attraction to women’.
The Tribunal observes that the applicant’s exploration of his sexuality appears to have coincided with the period he was homeless and affected by alcohol and drugs, and has considered the possibility that he engaged in these activities for survival as opposed to it being a part of his genuine sexual orientation. However, given the evidence now before it that the relationship with [Mr A] has sustained for this long and is continuing to date, despite their separation due to his incarceration and detention, the Tribunal cannot be confident it is not now a genuine part of sexual orientation and identity.
It will therefore consider his claims to fear harm upon return to Malawi on the basis that he has, as part of his sexuality, a sexual attraction to men and this is now a part of his sexual orientation.
He fears his sexual attraction to men will not be accepted or tolerated in Malawi. He fears harm and rejection if his relationship with [Mr A] becomes known to his family in Malawi and that he will be pressured to marry a woman. He fears discrimination and serious harm on the basis of his sexuality, if he engages in same sex conduct and that he will be at risk of contracting HIV due to the high prevalence of HIV in his country.
Claims relating to his background and family
The Tribunal notes, in his written claims the applicant refers to his family in Malawi having conservative religious views and refers to an aunty called ‘[Ms N]’ who is [an office bearer]. He did not elaborate on either of these matters in his oral evidence to the Tribunal.
The Tribunal has considered the evidence of the applicant’s brother, [Mr C] that the family, though not himself, are religious Catholics and as Africans, quite conservative. He also made reference to an aunty who is a [office bearer] in Malawi and a public figure.
The Tribunal notes there is currently a [office bearer] named [Ms N] in Malawi.[3] However, apart from the applicant and his brother’s assertions about an aunty named [Ms N], no other evidence of their familial relationship to this [office bearer] has been provided and in the absence of evidence to support the assertion, the Tribunal is of the view that there is no basis for it to accept that the [office bearer] named [Ms N] is the applicant’s aunty as claimed. As it turns out, this has no material impact on the outcome of the matter.
[3] [Reference deleted]
For the purposes of assessing his protection claims, it is prepared to accept he comes from a Catholic family, and that they are religiously conservative, on the basis of his and his brother’s oral and written evidence and country information that indicates 77.3% of the population are Christian (17.2% Catholic).[4]
[4] UK Home Office, Country Background Note Malawi October 2020, p13
The Tribunal also accepts, for the purposes of assessing his protection claims that the applicant arrived in Australia in 2004, aged [age], on an Orphan Relative visa granted to him on the basis that his parents were deceased and he has not returned to Malawi since then. Apart from his brother, he has limited contact with other family members in Australia and no contact with family members in Malawi. He left school in year [level], and last held paid employment in or around 2013.
Fear for a reason specified in s5J(1)(a) – membership of particular social group
The persecution an applicant fears must be for one or more of the reasons enumerated in s5(J)(1)(a), specifically: race, religion, nationality, membership of a particular social group or political opinion. A particular social group is one that is identifiable by a characteristic or attribute common to all members of the group, which is not the shared fear of persecution, and which must distinguish the group from society at large: Applicant S v MIMA [2004] HCA 25, Applicant A v MIEA (1997) 190 CLR 225. In the present case, the Tribunal is satisfied that men who are attracted to men is a group identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.
The Tribunal is satisfied that the applicant is a member of the particular social group of ‘men who are attracted to men in Malawi’ or ‘men who have sex with men’. The Tribunal is also satisfied that the applicant falls within the following other categories of particular social groups, being ‘bisexuals’, or ‘men perceived to be homosexual or bisexual in Malawi’ or ‘LGBTI persons’ more generally.
Real chance of serious harm in the reasonably foreseeable future for reasons of his membership of a particular social group
Having accepted above that the applicant’s sexual orientation includes same sex attraction, and that he has been, and is, in a same sex relationship with [Mr A] here, the Tribunal assesses his risk of future harm for this reason if returned to Malawi.
The Tribunal acknowledges there is a LGBTI population and a population of men who have sex with men (MSM) in Malawi.[5] The UK Home Office Background Note refers to numerous active NGOs supporting LGBT persons (eg. Nyasa Rainbow Alliance, RISE Malawi, and CEDEP) and sources refer to the Malawi Gay Rights Movement that emerged in 2008.[6]
[5] The Other Foundation, ‘Under Wraps’ (page 14), 2019 (3.5% of 1300 respondents identified as LGBTI, extrapoloated in the report to 186,000 people of the total population.)
[6] Gender, Gays and Gain: the Sexualised Politics of Donor Aid in Malawi, Emmie Chanika, John L. L:wanda, Adamson S Muula, 1 April 2013 >
The country information before the Tribunal establishes that homosexuality is, and remains, illegal in Malawi. Section 153 of the Penal Code in Malawi states that anyone who has had “carnal knowledge of any person against the order of nature” is guilty of a felony and is liable to be imprisoned for up to 14 years. Section 156 criminalises “indecent practices between males”, whether in public or private, imposing a penalty of imprisonment for five years and/or corporal punishment. In December 2010, the Parliament passed a bill amending the Penal Code (effective in January 2011) which introduced Section 137A to criminalise “indecent practices between females”, imposing a penalty of imprisonment of five years.[7]
[7] 'State-Sponsored Homophobia 2020: Global Legislation Overview Update', Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, 20201222140105
Although prosecutions were suspended in 2012, and that moratorium was re-affirmed in 2015, numerous reports refer to LGBTI persons and men who have sex with men still facing varying levels of punishment. For example, US State Department 2019 Human Rights Report refers to same-sex sexual activity can be prosecuted as “conduct likely to cause a breach of the peace” and that in 2016, the latest year for which data were available, the Center for the Development of People documented 21 instances of abuse based on sexual orientation and gender identity. The nature of the abuses fell into three broad categories: stigma, harassment, and violence.[8]
[8]
A Report of the Human Dignity Trust (HDT) (undated) report, Injustice Exposed – The Criminalisation of Transgender People and Its Impact, referred to reports from April 2018 suggest that Sections 156 and 153 are still being used to arrest and harass people.’[9]
[9] Human Dignity Trust, ‘Injustice Exposed – The Criminalisation of Transgender…’, (page 52), (n.d)
The 2020 Freedom House Freedom in the World Report, commenting on events in 2019, also referred to ‘LGBT+ people being subject to arbitrary arrest and detention and are sometimes physically assaulted while in custody.’ [10]
[10] Freedom House, ‘Freedom in the World 2020’, Malawi (Rule of Law), 2020
A report of Human Rights Watch (HRW) in 2018, ‘Let Posterity Judge’ – Violence and Discrimination against LGBT people in Malawi, provided an account by interviewees stating they had experienced police abuse, arbitrary arrest and detention despite the moratorium on arrests and prosecutions for consensual same-sex conduct and that the anti-homosexuality laws inhibited them from reporting abuses due to fear of arrest or further victimization by the police. An example was given of Justice, a 26-year-old transgender man and human rights defender, who told Human Rights Watch that in December 2017 he went to Likuni sub-station in Lilongwe to report a burglary and attempted robbery by a well-known gangster” in the area. Not only did the police refuse to open a case, according to Justice, they also told him to pay 50000 Kwacha [US$69] to avoid arrest under homosexuality charges.’[11] The same report referred to the punitive legal environment constituting a significant barrier to guaranteeing access to sexual health treatment and services for gay and bisexual men and other MSM. The combination of stigma and discrimination based on sexual orientation and gender identity in a criminalized context creates an environment in which these groups of people are deterred from or fearful of seeking prevention, testing, and treatment services. Those whose sexually transmitted infections (STIs) go untreated are at increased risk not only of developing complications, but also of contracting HIV; and those who face barriers accessing HIV testing and treatment due to stigma and discrimination are more likely to die of AIDS.
[11] HRW, ‘“Let Posterity Judge” – Violence and Discrimination…’, Chapter 2, 26 October 2018
Further evidence of violence, discrimination, harassment and attacks against LGBTI people was reported in the UN compilation on Malawi for the UN Human Rights Council as part of the Universal Periodic Review process, March 2020 with the UN High Commissioner for Human Rights stating that LGBTI+ persons experienced violence and discrimination.[12] The 2017/2018 Amnesty International Report reported that harassment and attacks against LGBTI people continued,[13] although the Tribunal notes there were no reports of attacks or harassment against LGBTI persons in the 2019 Amnesty International Malawi report published in 2020.
[12] OUNHCHR, ‘Compilation on Malawi’ (para 24), 9 March 2020
[13] Amnesty International Report 2017/18, ‘Malawi’, 2019
The Tribunal has considered the country information regarding attitudes of Malawians over LGBTI+ rights and tolerance, which found on the one hand, nearly all Malawians think LGBTI+ human rights should be protected, yet the same number would not accept a gay or lesbian family member. ‘The findings in Malawi showed contrasts swinging from tolerance to violence toward LGBT+ people’, said Alan Msosa, lead researcher and an academic with the University of Bergen in Norway[14].
[14] Reuters, ‘Malawians conflicted over LGBT+ rights, tolerance…,’, 22 November 2019
A report of the Arcus Foundation in 2019 stated the following in relation to Malawi, “The public debate on homosexuality has been complex, unpredictable and contested, and provides a snapshot of the difficulties LGBTI people face. Anti homosexuality discourse has largely been driven by religious and cultural chauvinism.” This is further exacerbated by a legislative framework which not only, does not protect, but also criminalizes LGBTI persons. Under President Mutharika, Malawi, rather than dismantling, reinforced the criminalization of LGBTI persons. Including, for example, in 2010 amending the penal code to specifically include same sex relations between females. And while president Joyce Banda indicated a personal interest in decriminalization, she showed little actual political will, citing a lack of readiness in the country. While there are no laws explicitly criminalizing transgender or intersex persons, gender non-conforming people are effectively criminalized, and often most harshly sanctioned, due to both perceived sexual orientation and a lack of access to basic services.[15]
[15] Arcus Foundation ‘Data Collection and reporting on Violence Perpetrated Against LGBTQI Persons in Botswana, Kenya, Malawi, South Africa and Uganda’ (January 2019, Updated October 2019) p46,
Regarding the social context for violence against LGBTI persons in Malawi the Arcus report found “Social stigma is at the heart of violence against the LGBTI community in Malawi. This stigma is justified using the language of safeguarding “Malawian culture and not introducing things from elsewhere” into the Malawian national identity. This has resulted in sustained violence targeted at the LGBTI community, including LGBTI sex workers and school going women accused of ‘Lesbianism acts. Social stigma is also fuelled by anti- LGBTI narratives in the mainstream media. Mainstream media does not exist in a vacuum, it is often a reflection of the state and the society within which it exists. Afrobarometer-Malawi (see graph below), in 2014, found that the social attitudes towards the LGBTI community were overwhelmingly negative. As shown in the graph below, the general sense is that there is a strong dislike and intolerance for the LGBTI community in Malawi.’[16]
[16] Ibid, p48
On the basis of the above country information the Tribunal finds that homosexuality and same sex activity remains illegal in Malawi, and despite there being a moratorium on prosecutions since 2012, LGBTI+ persons and MSM continue to be vulnerable to a range of abuses, discrimination and serious physical harassment including arrest, beatings and other harm at the hands of police officers which would amount to serious harm as contemplated by s5J(5). The country information also supports a conclusion that the punitive legal environment and discrimination faced deters access to basic health services for MSM which, were the applicant to contract HIV, could have serious consequences for the applicant including threatening his capacity to subsist.
The Tribunal finds the applicant’s particular circumstances, being that he has been absent from Malawi since the age of [age] years; is estranged from his extended family in Australia (other than his brother) and therefore is unlikely to have social or family ties in Malawi; has limited education, skills or work experience, and a history of alcohol and substance abuse and a criminal history, cumulatively place him at significant disadvantage upon return and make him even more vulnerable to the above mentioned serious harm in Malawi for reasons of his sexual orientation. The Tribunal accepts that he would have no support network that would accept his sexuality and support him or assist him to reintegrate into society there, given the attitudes of family towards LGBTI+ persons. This would exacerbate the chances he would be left homeless and fending for himself. The weight of country information supports a conclusion that there is a real chance, in the sense that it is not one which is far fetched or remote, having regard to his circumstances and his sexual orientation, that he will suffer serious harm if he engages in same sex activity or conduct. The applicant cannot be expected to alter or conceal his sexual orientation to avoid this real chance of harm (s5J(3)(iv).
The Tribunal finds the harm feared is systematic and discriminatory conduct and the essential and significant reason he would suffer this harm is because of his membership of the particular social group of men who have sex with men.

100. The Tribunal finds the risk of persecution on the basis of his sexual orientation exists throughout the country noting the criminalisation of same sex acts is a national law, and human rights reports indicate that violence against LGBT persons in Malawi remains a national problem.
101. The Tribunal is satisfied that the applicant would be unable to obtain effective state protection against the persecution he fears in Malawi as the persecution would be at the hands of police, being state, officers.
102. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
103. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Meena Sripathy
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.
…