2112075 (Refugee)

2112075 (Refugee) [2024] AATA 4284 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2112075
COUNTRY OF REFERENCE:                   Kiribati
MEMBER:Don Smyth
DATE:10 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 9:37am
CATCHWORDS
REFUGEE – protection visa – Kiribati – born in another country and fostered with distant relatives in third country from young age – abuse by foster family members – mental health – citizen of parents’ country – obtained foster country passport to work overseas, claiming foster parents as birth parents – identity, personal details, family members and original claim of land dispute notified as incorrect at departmental interview and new information given and claims made – has never lived in country of citizenship, and is unfamiliar with culture and customs – inconsistent documentation – religion – minority religion in Christian majority country – length of residence and separation from partner in Australia – late claim of membership of particular social groups – gender identity and sexuality – country information – freedom of expression – bogus document provided as evidence of identity, nationality or citizenship – no reasonable explanation – grant of visa prevented in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65(1), 91WA(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
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 applied for a protection visa on 23 January 2017. On 26 August 2021, a delegate of the Minister for Home Affairs (the Minister) to refuse 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.
The applicant appeared before the Tribunal on 6 September 2024 to give evidence and present arguments.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
The protection visa application was made in the name of [an alias, comprised of three names]. The application indicated that the applicant was born in [Village 1], [Island 1] in [Province 1], [Country 1] in [Month, Year 1]. It described his ethnic group as Ikiribati [Nationality 1] and his religion as [Religion 1]. It gave his citizenship as [Nationality 1].
The application indicated that the applicant had a de facto partner, [Ms A], who was a [Nationality 1] and born in [Month, Year]. It indicated that the relationship began in [Town, Country 1] in December 2011. The application named two sons, born in [Country 1] in [Months, Years] respectively, and a daughter, born in [Country 1] in [Month, Year]. It provided details of [brothers and sisters], all [Country 1] citizens and all with the surname ‘[Alias surname]’. It indicated that two sisters, [Ms B] and [Ms C], were resident in Australia. The applicant stated that he contacted his family in [Country 1] four or five times a week by mobile phone. He stated that his de facto wife and three children were residing in [Island 2], [Province 2].
The applicant provided details of a number of past addresses. He indicated that he had lived in [Island 1], [Province 1], from [Birth] to November 2003, and in [Island 3] from November 2003 to August 2005. He indicated that he had lived at addresses in [Town, Country 1] from August 2005 to February 2011, and again from July 2011 to August 2016. From February to July 2011, he was in [Country 2].
The applicant provided details of past employment in [Country 1], most recently as [an occupation 1] for [Employer 1] from August 2013 to August 2016. He provided details of education undertaken in [Country 1] between [Year] and 2002, and of a Certificate III course completed at [College] in 2011.
The applicant indicated that he had last arrived in Australia [in] December 2016, having departed [Country 1] on the same date. He indicated that he had been granted a visitor visa on 29 July 2016. With regard to whether he had returned to his home country since arriving in Australia, the applicant referred to having entered his home country [in] December 2016. With regard to why he had returned to his home country, he referred to a visa requirement to leave Australia every 3 months. The applicant provided detail of travel to [Country 2] for study from February to June 2011, and indicated that he had transited in [Country 3] in June 2011.
The applicant indicated that his travel document was valid for return to his home country. With regard to how he had obtained his current travel document, he stated, ‘Through legal procedure by filling up immigration form in [Town, Country 1]’.
The applicant made written claims in his application, stating that he was seeking protection so that he did not have to return to [Country 1]. In summary, he claimed that he had left [Country 1] because of longstanding grievances over land title and ownership between him and his elder brothers. He indicated that this had resulted in displacement, insecurity, vulnerability and violence that was life threatening putting him and his children ‘in a very unstable future’. He stated that his life would be in danger if he returned to [Country 1]. His elder brothers and their ‘cohorts’ would continue to hunt him down and have revenge for a fight against them. He referred to having done this in self defence, stating that he would have died if he had not done it.
The applicant claimed that the longstanding grievances over land had led to a row followed by a fight. He referred to having been attacked by his elder brothers. He stated that it was an act of defence that almost killed both. He claimed also that his third brother and two cousins had attacked him with machetes and that he had nearly been killed. Without the intervention of his uncle and mother, he would have died. The applicant referred to injuries to his forehead and left thigh.
The applicant claimed to have reported the case to a sergeant from [Island 1] Police Station. He stated that this person had written his statement and assured him of legal action against his brothers and their cohorts. However he stated that no action had been taken against his brothers and their cohorts. When he followed up his case, it had never been filed. The applicant referred to there being no record.
With regard to whether he had tried to move to another part of [Country 1], the applicant stated that he had moved to [Island 3] with his mother. Some time later he heard news that his elder brother was coming with an intention to take revenge. On his mother’s advice he fled to [Town, Country 1] to her sister in [Suburb].
The applicant made claims to the effect that he feared being killed. He stated that his elder brothers and those on their side would be ready and making sure they got their revenge over their fight and dispute over a land issue. He referred to breaking a ‘tabu’ for hurting them in self defence. He referred to their making sure he was deprived of his rights in the family unit and properties. He stated that they would always look at him as inferior, a nobody and an outcast that should not have existed. He stated that, for these and many more reasons, he feared returning to [Country 1] for his life and the future of himself and his family.
The applicant stated that the authorities would not protect him. He referred to his reported case never having been found on their records. He stated that nepotism, bribery and corruption were common, leading to injustice. He referred to having been accused by some police officers of trying to stir conflict against his family. He stated that he would not be able to relocate to any part of the [Country 1] because he would not be safe from his brother’s network with their cohorts. They would continue to pursue him until they had their revenge.
The applicant also provided the following documents to the Department in support of the protection visa application:
·     A copy of a [Country 1] passport in the name [Alias – first and third names] with a date of birth of [Date 1]. The passport was issued [in] 2011. It includes a number of stamps, including a stamp apparently recording arrival in [Country 2] in February 2011, stamps apparently recording entry to and departure from [Country 3] in June 2011, a stamp recording arrival in [Country 1] [in] November 2016, a stamp recording departure from [Country 1] [in] November 2016, and stamps recording arrival in Australia [in] August 2016 and [in] November 2016. The passport also contains a Temporary Resident Permit for [Country 2] granted on 24 March 2011 and permitting entry and stay up to a date in July 2011.
·     A certificate of attendance issued to [Alias – first and third names] with respect to a Certificate III in [Subject 1] course conducted in [Country 2] in 2011.
·     A record from the [Country 1] Register of Births. This appears to record the birth of [Alias – first and third names] in [Village 1], [Province 1] on [Date 1]. It names the parents as [Mr D] and [Ms E], and identifies them both as [Nationality 1]. The document appears to have been issued on 8 March 2007.
·     A [Country 1] School Certificate in the name of [Mr D].
·     A record of a Certificate III in [Subject 1] awarded to [Alias – three names] in June 2011.
·     A Final Statement of Completion recording completion of a Certificate III in [Subject 1] by [Alias – three names] in June 2011.
·     A letter of 19 January 2017 from [Ms B] who described [Alias – three names] as her younger brother. This refers to a number of matters including a land dispute.
·     A [Country 1] passport and an Australian Driver Licence in the name of [Ms B].
·     A copy of a [Country 1] Driving Licence in the name of [Alias – three names].
Departmental Interview
The applicant attended an interview with an officer of the Department on 13 April 2021. The interview was conducted by telephone.
The delegate’s decision (a copy of which the applicant has provided to the Tribunal) included a summary of information provided by the applicant at the interview. With respect to the applicant’s history and nationality, this included the following:
At the commencement of the Protection visa interview held on 13 April 2021 the applicant was asked whether he was sure that the information in his Protection visa application was true and correct. The applicant replied no, and when further clarification was sought as to whether any of the information was true, he again replied no. He then indicated that his passport and his date of birth was a misdirection. When clarification was sought as to his identity he indicated that his real name is [applicant name], and that his real date of birth is [Date 2]. He indicated that he was born in [Hospital], in [Country 4]. He indicated that his parents are nationals of Kiribati, indicating that his father’s name is [Mr F], and his mother’s name is [Ms G]. He indicated that when he was aged 6 or 7 he went to Kiribati with his parents, and they went on to [Country 1] in around [Year]. He claims that his parents went back to [Country 4], but he was left behind in [Country 1] with a family who wanted to adopt him. He claimed that in [Country 1] he lived with [Mr D] (deceased) and [Ms E], but there are no legal documents for his adoption. He claimed that he believes that [Ms E] is related to his family, and that his mother was cared for by [Ms E] when she was a child. He indicated that he is in contact with his mother, and that his father is deceased.
At interview the applicant initially claimed that he was a national of [Country 1]. However, when asked how he obtained this nationality, he claimed that he went to the Ministry of Home Affairs and told them he was from the [Alias surname] family, because that was the family he was living with, and he had to come up with something just to help himself. He claims that he did this himself just to get his passport. The applicant was subsequently asked whether he actually believes he holds [Country 1] nationality and he replied I am not a nationality (sic) of [Country 1] ……I was born in [Country 4]. He was asked if he holds [Country 4] nationality, and indicated that because he was born there that is the right place that he would hold nationality and citizenship. He was asked if he holds Kiribati nationality, and he replied I would say yes, further indicating that his parents are from Kiribati, but he does not know the law. He further indicated that he would have no objection to saying that he is also a national of Kiribati.
I put this summary to the applicant at the Tribunal hearing (and provided him with a copy of the delegate’s decision). The applicant confirmed that this sounded like a correct record of what he had told the Department and said that this was the truth about him.
The delegate’s decision also provided a summary of evidence provided after the applicant was asked about his reasons for coming to Australia. This included the following:
At the commencement of the Protection visa interview held on 13 April 2021 the applicant was asked whether the information in his Protection visa application was true and correct. The applicant replied no, and then when clarification was sought as to whether any of the information was true, he again replied no. The applicant was asked why he gave information which was not the reason why he did not want to go back to [Country 1]. In reply he indicated that it was hard to tell, and that it is darker than what he had written on the papers, and it was something to make him not go back to [Country 1], but there was a real reason behind it.
At interview the applicant was asked about his reasons for coming to Australia in 2016, and he indicated that he looked back at his life in [Country 1] and everything was not in the right place, and he wanted to make a different life for him and his children. He was asked if he had personally experience harm in [Country 1], and claimed that he had gone through a lot in [Country 1] since [Mr D] died, and that he had suffered physical and emotional abuse by his foster mother [Ms E], and was sexually abused by other family members.
At interview the applicant was asked what he fears would happen to him if he was to return to [Country 1], and indicated that it is like he has no place in the family, because he was adopted. He claims life was really hard living with that family, and he had no hope, no love, and no home. He claims that he does not want his children to go through the same thing. When questioned further as to whether he has any concerns that he would be harmed by anyone, he referred to harm coming from the family itself, indicating that he was like a stranger, and didn’t know how to get along with them. It was put to the applicant that he met his partner [Ms A] in 2011, and had lived with her up until he came to Australia, and he was asked why there would be problems with the [Alias surname] family now, who he had not lived with in nearly ten years. In reply he claimed he had no place to go back to them, because he has been living away from them, and it is really hard for him to go back. He was asked whether he could go back and live with his wife and children, and he indicated it is the same story with his wife, because she was born without a father, and they find it hard to live with her family because they have no rights to land, and the only thing they can do is to live and work in the city. He subsequently indicated that they lived with her relatives, but they have to care for the whole family, and it is really hard for them to find a place to call home and to concentrate on themselves.
At interview the applicant was also asked if he feared returning to [Country 4] for any reason, and he replied no. He was also asked if he had any fears about returning to Kiribati, and in reply he indicated that he doesn’t have fear but asked how can I go back?, and indicated that starting a new life there would be really hard for him. He indicates that he wants to call some place home and start a new life for him and his children.
I put the summary above to the applicant at the Tribunal hearing. He indicated that it was an accurate record of what he had told the Department at the interview. He referred to having freedom in Australia to tell the truth unlike in [Country 1].
The applicant also provided evidence about other matters at the interview. This included evidence about having suffered physical, emotional and sexual abuse in [Country 1], about where he lived in [Country 1] and about what he was afraid would happen if he returned to [Country 1]. I have had regard to all of his evidence at the interview.
Further Information Provided to the Department
On 13 April 2021, the applicant emailed the Department indicating that he was in the process of obtaining his birth certificate. He indicated that [Country 1] birth certificate was ‘not true’ and that he obtained that birth certificate by ‘going around the system’ which he said he knew was not right. He stated that he had been left alone to help himself in conditions he did not create. He referred to the account he had given to the case officer being his real life story. He stated that he felt he was not loved and was neglected by the people who brought him into the world. He referred to unimaginable things happening to him through his childhood. He apologised for not letting everyone involved in his case know this in the first place but stated that it was really hard for him to testify about his life in the past. He stated that it hurt whenever he thought about it. He stated that he just wanted to find a place to call home, move forward and never look back for the sake of himself and his children. Attached to the message to the Department was email correspondence from the Deputy Registrar at the Registry of Births, Deaths and Marriages in [Country 4] (dated 9 April 2021). This refers to having located the applicant’s birth registration and confirms that the applicant was born on [Date 2] in [Country 4] with the name of [applicant name].
Also on 13 April 2021, the applicant submitted to the Department further correspondence between himself and the [Country 4] Consulate-General. In the email exchange the applicant seeks assistance (in an email dated 5 April 2021) in relation to his birth certificate, stating that he was born in [Country 4]. He also provides information (in an email dated 8 April 2021) about his history, including that his biological mother's name was [Ms G] and his biological father's name was [Mr F]. His father was [an occupation 2] and worked at [Workplace 1] around the [Decade] (the applicant indicated that he was unsure of the dates). He gave information to the effect that his mother had told him that his birth name was [applicant name] and that he had been born at [Hospital] in [Country 4] on [Date 2]. He provided information to the effect that he had been left behind when they visited his mother’s relatives in [Country 1] when he was 6 years old. From that day, he had been using his ‘real name’, [First name], and his fostered parents’ surname, [Alias surname]. He stated that it had taken some time to figure out the exact date that he was born but with the help of his mother using messenger on the internet, everything had started to fall into place. He referred to communicating with his mother from time to time when he arrived in Australia ‘since 2016’. He requested assistance ‘to justify that I am not insane to tell people that I was not born in [Country 1]’. He stated that he was tired of misdirecting people when asked who he was and wanted to tell people the truth. The applicant stated, ‘It's like living under bondage when the personality I am currently living in is nothing more but a flaw. I think I have been deprived since childhood that's why I just want to put things right.’ He stated that he had been ‘a victim of cultural rights’, and would not say more to escalate what he had gone through.

The applicant subsequently provided a statement to the Department, apparently in response to a letter issued by the Department pursuant to s 56 of the Act in April 2021. In the statement the applicant indicated that [Alias – first and third name] was the name he used in [Country 1], that his real name was [applicant name] and that he was born in [Country 4] on [Date 2]. He provided information about his biological mother and biological father, naming his biological mother as [Ms G] and his father as [Mr F]. He indicated that they were citizens of the Republic of Kiribati.
The applicant claimed that in [Year] they travelled to [Country 1] to spend a holiday with his mother’s relative, [Ms E], who was married to [Mr D]. The applicant claimed that his parents went back to [Country 4] after the holiday and he was left behind in [Country 1] at [Island 1], [Village 1], [Province 1]. He stated that, according to his biological mother, [Ms E] and [Mr D] wanted to adopt him. The applicant stated that he was still trying to understand the true reason he was left behind.
The applicant described aspects of his life in [Country 1], stating that life in [Village 1] was happy until [Mr D] died. The applicant provided information about the [Alias surname] family. He claimed that life was harsh, rough, and tough after [Mr D] passed away. He claimed to have experienced physical abuse, emotional abuse, sexual and child exploitation. The statement described his experiences and his mistreatment. The applicant stated that psychologically he faced ‘conditions such as mental trauma, depression, loss of self-confidence or low self-esteem, anxiety, or symptoms of self-destruction and hardly had trust on anyone’. He referred to having attempted suicide and to a ‘close call’ in 2011. The applicant described being too scared, embarrassed or ashamed to tell anyone about what he had gone through in life. The applicant referred to moving out of his mother’s family to stay with his fiancée’s family until he left [Country 1].
Under the heading ‘Fear of Returning to [Country 1]’, the applicant referred to a number of matters, including believing that he had been living there illegally for about 30 years, fear he might end up in jail if the law found out who he really was (he also expressed concern for the family, referring to ‘illegal adoption’), fear that what he had gone through could happen to his children, fear that the family who raised him might turn against him for telling the truth of who he was, fear of an uncertain future for himself and family, and fear that he had no place to call home or raise his children properly. He also referred to ‘other reasons’, including lacking immediate family to turn to, lack of proper support from the family, and land dispute being rife within the family he lived with and even his de facto’s family. He stated that he was a nobody if he returned to [Country 1]. He stated that he had been struggling trying to find someone who would love him as a son and a place to call home. He described himself as hopeless.
Under the heading ‘Fear of Returning to [Country 4]’, the applicant referred to being unsure he could be a citizen, being unsure he could fit their customs and culture and never knowing if he had family in [Country 4].
Under the heading ‘Fear of Returning to Kiribati’, he referred to the following: ‘Never know if I will be welcomed with an open arm from my family’; ‘I fear of not knowing what the future holds for me if I return to my family since I was given away when I was around six’; ‘Fear that I will have to start all over again in life’; and ‘Fear that my presence will cause future conflict if I try to claim my birth rights as a first-born son of [Mr F]’. Under the hearing ‘Other Reasons’, he stated that he did not want to be obliged to the custom and culture. He stated also, ‘I think the same custom and culture that sealed my faith for staying in [Country 1].’
Under the heading ‘How I Obtain [Country 1] Birth Certificate and Passport’, the applicant stated:
In 2009 while I was in [Town, Country 1], I wanted to do seasonal work in [Country 5]. I did not know what to do to obtain my [Country 1] passport and birth certificate since I was not born or legally adopted by my fostered parents. [Ms E] and [Mr D].
With [Ms H]’s ([Ms E]’s sister) advise, with some information, I went to the home affairs office and claimed that I was [Ms E]’s and [Mr D]’s son and was born in [Village 1] [Island 1]. My birth was attended by a midwife that is why I did not have my name registered.
To prove that, they checked against the names of [Mr D] and [Ms E]. It was in their record. The staffs then advised me that I must go to the Electoral Commission [Country 1] to get a form.
After filling in the form which is quite complicated because some requirements did need to be signed by level 6 or 7(could not really remember what level) public servant staffs or by the magistrate or a high court registrar. With determination, I passed through all requirements. I hand it back to the Electoral Commission office and wait for some time before they release my birth certificate. (At this stage, I knew that what I was doing is illegal, but I cannot help it because I did not create the situation I was in).
With the birth certificate in hand, I went to the immigrations office to obtain my passport. I fill in their form with all the requirements and pay the passport fee. After a couple or month or so, I did obtain my passport.
The applicant provided a number of additional documents, including the following:
·     A Form 1023 (Notification of incorrect answer(s)) dated 10 May 2021. The applicant indicated that the following information was incorrect: ‘Surname: [Alias surname], Place of birth: [Island 1] [Province 1], Nationality: [Nationality 1], Father's name: [Mr D], Mother's name: [Ms E], Siblings: [I], [J], [Ms B Alias/Ms B], [K], [L], [M]’. He indicated that the correct details were as follows: ‘Surname: [the first name of applicant name and Alias], Place of birth: [Hospital] [Country 4], Nationality: Ikiribati, Father's name: [Mr F], Mother's name: [Ms G], Siblings: [Ms N], [Ms O], [P],[Mr Q], [Mr R], [S]’. He also indicated that the following information was incorrect: ‘Physical fighting over land dispute in [Country 1] amongst my [Country 1] fostered male siblings, Police involvment in the case’. With regard to the correct details, he stated that no physical fighting occurred. He indicated that there was just a row and ill feelings towards each other. No police were involved in the case. With regard to why the incorrect information was provided, he stated: ‘Because I was desperate to find a way out of [Country 1]. I have been struggling to stay alive through all the hardships that I went through which makes me hopeless.’
·     A certificate of marriage issued by the Republic of Kiribati. This records the marriage of [Mr F] and [Ms G] on [Date].
·     A birth record issued by the Republic of Kiribati [in] April 2021. This named the child as [Mr F] and indicated that the child was born in [Location] on [Date].
·     A birth record issued by the Republic of Kiribati with respect to the birth of [Ms G] in [Location] in [Month, Year].
·     A further Republic of Kiribati birth record with respect to the birth of a child named [applicant first name] in [Country 4] on [Date 2]. The father is named as [Mr F] (aged [Age]) and the mother as [Ms G] (aged [Age]).
·     Further Republic of Kiribati birth records relating to children of [Mr F] and [Ms G]. The children are named as [Ms N] (born [Date]), [Ms O] (born [Date]), [P] (born [Date]), [Mr Q] (born [Date]), [Mr R] (born [Date]) and [S] (born [Date]).
·     Republic of Kiribati Death Certificates recording the death of [Ms N] on [Date] and [Ms O] on [Date].
·     A letter of 12 May 2021 from [Ms G] who gave an address in Kiribati. She stated that [applicant first name] was her legal child and named the father as [Mr F]. She indicated that she had given birth to him in [Country 4] on [Date 2]. She referred to the cause of staying in [Country 1] with her cousin sister, [Ms E], and [Mr D]. She stated that they had 4 children and [Employer 2] employees were only allowed to have 3 children. She referred to spending their holiday there in [Year]. She stated that [Mr F] died on [Date].
·     A copy of the bio-data page of a Republic of Kiribati passport issued with respect to [the applicant] (date of birth [Date 2]) [in] 2021.
Review Application
The applicant submitted with the review application a copy of the delegate’s decision.
On 10 October 2021, the applicant submitted a further statement by email. In the statement he referred to not feeling safe to go back to his biological mother in Kiribati. He stated that he was not sure ‘how a mother would feel or parents would feel for neglecting their children’. He stated that he felt like he had been neglected and ‘left to find my own way out of life in the hands of her distant relatives’. He referred to hardships and conditions he faced in [Country 1] while his friends were taken good care of and being given the love that he would never have. The applicant claimed also that one of his biological brothers, [Mr R], had been left in [Country 1] as well when his mother gave birth while on holiday in [Country 1]. His mother had left [Mr R] with some distant relatives as well. The applicant referred to seeing [Mr R] in hospital with a broken arm around 2002. He stated that [Mr R] had walked from the central hospital in [Town, Country 1] to where the applicant lived to see him and get to know him.
The applicant referred to these as some of the darkest moments in his life when he thought about why they were not given the same parental care and protection as their other siblings. He stated that, now he was a grown man and knew it was not right for a mother or parents to neglect their children, he did not feel safe to go back to Kiribati. He stated that he would have felt much safer living in Australia and starting a new life than going to Kiribati and being around his biological mother and siblings who felt like strangers to him. He stated that loving her as his biological mother would not come easily and referred to the troublesome times he had gone through in [Country 1]. He referred to a time when ‘I cried in one of her holidays to take me back with her to [Country 4]’. He stated that his parents had all the resources to get him and his brother out of [Country 1] for a better and brighter future, but that never happened. They were left to some unknown destiny. He referred to feeling safe and secure in Australia away from his distant relatives and even his own mother.
In March 2022, the applicant emailed the Tribunal stating that his personal circumstances had changed. He indicated that he was in a relationship with a woman and that they were planning to get married. He indicated that he had been living together with this person and that she was an Australian citizen. He indicated that he had been living with this person since 2017.
The applicant submitted a Pre-hearing information form along with a number of documents, including the following:
· A copy of the bio-data page of a Republic of Kiribati passport in the name of [applicant name] (date of birth [Date 2]). The passport was issued [in] 2021 and identified the holder’s place of birth as [Country 4].
· Further copies of documents that had been provided to the Department, including the marriage certificate for [Mr F] and [Ms G]; birth records for [Mr F], [Ms G], [applicant first name], [Ms N], [Ms O], [P], [Mr Q], [Mr R] and [S]; and death records for [Ms N] and [Ms O].
The applicant attended a Tribunal hearing on 6 September 2024. I have had regard to all of the applicant’s evidence at hearing, although it is not necessary to set this out in full. Aspects of his oral evidence at hearing are summarised in my consideration, below.
I note that, while the applicant did not return a Response to hearing invitation form, he had indicated in the review application that he did not need an interpreter when communicating with the Tribunal. In his protection visa application, he indicated that he could speak, read and write English, and that he would not need an interpreter if called for an interview. At the hearing he indicated that he did not need an interpreter. He confirmed that he could understand English, that in English was the best way to talk with each other and that most of his schooling in [Country 1] was in English. In all the circumstances, I am satisfied that the applicant was proficient in English and that it was appropriate to conduct the hearing in English.
When asked about witnesses at the commencement of the hearing, the applicant referred to his partner but said she was not available because she was sick and had an appointment with the doctor. When asked what he wanted her to give evidence about, he said about living here in Australia because he had been with her for 8 years. He indicated that he just wanted her to talk about his relationship in Australia, and that she knew the ins and outs of him in Australia. Towards the end of the hearing, I indicated that I would give the applicant additional time if he wished to provide a written statement from his partner. The applicant ultimately indicated that he did not know what his partner was going to say or write. I gave the applicant until Friday, 13 September 2024 to provide any additional documentation. The applicant has not provided any additional documentation after the hearing. I note that the applicant did not nominate his partner as a witness prior to the hearing and indicated that she was unavailable at the time of the hearing. The applicant indicated that she could give evidence in relation to his time in Australia. It is not clear from this how her evidence would be relevant to his protection claims. The applicant was given an opportunity to provide written evidence from his partner but ultimately has not provided a written statement from her. In all the circumstances, I did not consider it necessary to take evidence from his partner.
I note that the applicant claimed at the hearing that he had a problem with memory. When asked why he had a problem with memory, he said it was hard for him to keep thinking about the past. He tried to keep focus on what is now and in the future. He said he thought that led to him forgetting many things. When asked whether it was the case that he did not have any medical condition, he said he had not done any check with a doctor so he was not sure. He indicated that he had not been getting any medical treatment. While I have had regard to the applicant’s submissions about his memory, I consider that he was fit to participate in the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
INDEPENDENT COUNTRY INFORMATION
Kiribati: Civil Liberties
As discussed with the applicant at hearing, the Freedom in the World 2024 report for Kiribati from Freedom House states that Kiribati is a multiparty democracy that holds regular elections and has experienced peaceful transfers of power between competing groups. It states that civil liberties are generally upheld. The constitution and legal framework provide for democratic elections, and balloting is well administered in practice. Kiribati has a history of smooth and democratic transfers of power between government and opposition parties. All citizens formally enjoy full political rights. The government does not impose constraints on freedom of speech or the expression of personal views. Freedom House gave Kirtibati a rating of 4 (out of a possible 4) in relation to the question: ‘Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?’[1]
Kiribati: Religion
[1] Freedom House, Freedom in the World 2024: Kiribati
With regard to the question, ‘Are individuals free to practice and express their religious faith or nonbelief in public and private?’, Freedom House gave Kiribati a rating of 4 (with 4 representing the greatest degree of freedom).[2] It stated: ‘The constitution guarantees freedom of religion. Religious organizations of a certain size are required to register with the government, but there are no penalties for failing to do so. Two islands in the southern part of the archipelago have overwhelmingly Protestant populations and maintain a “one religion” tradition. However, foreign missionaries may operate freely there upon requesting permission from local authorities.’[3]
[2] Freedom House, Freedom in the World Research Methodology, available at Freedom House, Freedom in the World 2024: Kiribati
The 2023 report on Kiribati from the organisation Aid to the Church in Need International stated that ‘[t]here were no significant changes or incidents related to religious freedom in Kiribati during the reporting period’.[4]
[4] Aid to the Church in Need, Religious Freedom in the World Report 2023: Kiribati, available at type="1">
The [Religion 1] community of Kiribati maintains a webpage ([URL 1]). According to information on the website, [Members] are engaged in community service projects which welcome people from all backgrounds. Activities include children's classes, a Junior Youth [Programme] and devotional meetings for all ages. These activities are held in local communities around the country.[5] [Percentage] of the Kiribati population are [Religion 1].[6]
[5] [Religion 1] Kiribati, ‘[Page 1]’, available at [URL 2]
[6] [Religion 1] Faith Kiribati, ‘[Page 2]’, available at [URL 3]
At the hearing I discussed with the applicant the gist of this information on religious freedom and the [Religion 1] faith in Kiribati. The applicant did not comment on this information.
Kiribati: Mental Health
With regard to mental health services in Kiribati, I discussed with the applicant at hearing the gist of the following information from a 2017 report (published by DFAT) in relation to the Kiribati Disability-Inclusive Development Program (KDIDP), a program funded by DFAT since 2014:
KDIDP has funded improvements to mental health facilities in Kiribati, upgrading and providing separate facilities for women and men. Standards in the mental health unit for women now meet basic human rights standards. The program has also provided funding for the upgrading of the building housing a Community Wellness Clinic which provides outpatient and primary mental health care services. The existence of good quality mental health facilities has significantly contributed to raising the profile of mental health care and to reducing the stigma associated with mental illness; together these are reported to have increased the willingness of patients and their families to receive treatment…
Its outcomes and funding have been closely aligned with Government of Kiribati policies including the … Health and Mental Health Policies…[7]
[7] DFAT, ‘Report of the Independent Review of the Kiribati Disability Inclusive Development Program’ (May 2017) at pp.vii, 1 & 7, available at >
I put this information to the applicant at the hearing. I also put to him that the report indicated that the Government of Kiribati had Health and Mental Policies.[8] It referred to a 2013 WHO report which referred to there being a treatment gap in mental health. However, it indicated that KDIDP’s support, which raised the profile of mental health, had encouraged other donors to support this area. It referred to initiatives such as the appointment of a new doctor with mental health qualifications to oversee a psychiatric ward.[9] It stated that new facilities provided dignity to patients, encouragement to staff and also supported changing attitudes around mental health. Respondents reported that attitudes were changing with stigma reducing and increasing Government commitment to mental health.[10] It stated that a Health Strategic Plan 2016-19 included ‘a strategic objective to improve mental health services and, for the first time, a list of strategic actions and indicative activities to achieve this objective. The first Kiribati Mental Health Policy covering the period 2016 – 2020… was recently published which recognised the human rights of people living with mental disorders and psychosocial difficulties and noted increasing interest from Government, development partners and the community in improving mental health services.’ The report stated that there was a specific budget allocation for mental health services, although this was likely to be less than 2% of the health budget.[11] It stated that, as evidence of changing attitudes, staff reported that families and patients were now more willing to be treated and families were visiting patients more often, ‘thus providing support to both staff and patients and increasing the likelihood of a successful reintegration once treatment was complete’. This was reported to be due in large part to the improved facilities ‘which were now seen to be a place for treatment, not shame’.[12] I put the gist of this information to the applicant at the hearing. He did not offer any substantive comment on this.
CONSIDERATION OF CLAIMS AND EVIDENCE
[8] Ibid. at p.7
[9] Ibid. at pp.24-25
[10] Ibid. at p.25
[11] Ibid. at p.25
[12] Ibid. at p.25
Consideration of criterion in s 36(2)
Background and Citizenship
I note that, at hearing, the applicant gave evidence about what he claimed was his true identity in a manner that was broadly consistent with the information he had ultimately given the Department. In summary, he indicated that his real name was [applicant name] and he was born in [Country 4] on [Date 2]. His biological parents’ names were [Mr F] and [Ms G]. He indicated that his biological father and 2 of his sisters, [Ms O] and [Ms N], had passed away. He gave evidence that he was born in [Country 4] and lived in [Country 4] until he was 6 or 7. He indicated that he went to [Country 1] with his parents on holidays in about [Year]. His parents went back to [Country 4] with his 2 sisters. With regard to whether he had ever lived in Kiribati, the applicant described stopping over in Kiribati for about a week before they went to [Country 1], although he said he could not really recall that. The applicant confirmed that he lived in [Country 1] from about [Year] and that he lived with [Mr D] and [Ms E]. He gave evidence to the effect that [Ms E] was related through his biological mother, although he had not been told how close the relationship was. When asked whether he was ever formally adopted, he replied ‘Not that I know of’ and confirmed that there were no legal documents. He said he remembered when he was about to be sent to school and they told the teachers to write the name [Alias – first and third names]. That was how he used the [Alias surname] family surname. He said when he came to Australia he sought the truth from his biological mother and that was how he contacted the [Country 4] consulate and they helped him to provide that birth certificate.
At the hearing, the applicant gave evidence about his life in [Country 1], including various places he had lived and his employment history there. He provided details of his education, indicating for instance that he had attended school between about [Year] and 2002. He confirmed details of his employment in [Country 1], including that he worked as [an occupation 1] for [Employer 1] from August 2013 to August 2016, and at [Employer 3] as [an occupation 3] from July 2011 to August 2013. He indicated he had obtained a Certificate III qualification in [Subject] in [Country 2] in 2011. He confirmed that he was in [Country 2] from February to June 2011.
At the hearing the applicant gave further evidence about the family he claimed was his biological family. In summary, he confirmed that [Ms N] and [Ms O] had passed away. He gave evidence to the effect that his mother had also left [Mr R] with a family in [Country 1] and that [Mr R] was still with them there. He indicated that there were 3 other children of the family, namely [P], [Mr Q] and [S]. When asked whether he had ever had contact with his siblings, he referred to having had contact with one of his biological brothers, [Mr Q], in Australia (as discussed further below).
The applicant also gave evidence at the hearing about his de facto relationship in [Country 1] with [Ms A]. In summary, he gave evidence to the effect that the relationship commenced in December 2011 and that he lived with [Ms A] after December 2011 in a crowded house with her family in [Town, Country 1]. He confirmed that they had 2 children, [Master T] and [Miss U], and that there was also a stepson, [Master V]. He gave evidence to the effect that [Ms A] is now working in Australia, although he was not sure how long she had been here, and that the children were living with [Ms A]’s relatives in [Town, Country 1]. He indicated that [Ms A] contacted him when she needed help for the children and that he was not in contact with his children very often now that he was living with his Australia partner. He gave evidence about this relationship also, naming his partner as [Ms W]. He indicated that they had been living together for 8 years (or since 2017), that they were currently living in [Town] and that she worked for [an occupation 4] in [Town]. He said that they were not married, just engaged. They had plans to get married. He indicated that there was a stepson from [Ms W]’s previous partner and that he was uncertain whether she was divorced. He indicated that he was no longer in a de facto relationship with [Ms A], although they were trying to work things out for the sake of his children.
At the hearing, I discussed with the applicant the question of his nationality, including independent country information with regard to citizenship in Kiribati, [Country 4] and [Country 1]. The applicant himself said he had no idea about the law but referred to having been born in [Country 4], his biological parents being citizens of Kiribati and having obtained the Kiribati passport through his biological mother. When I raised with the applicant that it might seem that the information he used to get his [Country 1] passport was not accurate, the applicant agreed. The applicant went on to state that it was hard to say that he was genuinely from [Country 1] because he was born in a different country. He referred to all the things he had been through as just not right. He said the truth had been hidden from him so when he was here he tried to find the truth. He indicated that he did not think that he was a genuine citizen of [Country 1]. When asked about whether he had had a visa for [Country 1], he said he had no idea. He indicated that when he was there with his mother he was not sure whether they were on a visa to [Country 1] and questioned how they had gone back without the authorities knowing that he was not with them or that someone was missing. He indicated that he had not applied for any visa to stay in [Country 1].
I have carefully considered all of the applicant’s evidence about his background and his nationality. As set out above, the applicant initially claimed to have been born in [Country 1] and to be a citizen of [Country 1]. He produced to the Department a [Country 1] passport and birth certificate in connection with his protection visa application. He now claims to have been born in [Country 4] to parents who were nationals of Kiribati. He has produced evidence of a passport issued in his name by the Republic of Kiribati as well as birth and other records from Kiribati relating to himself and the people he claims are his biological parents and siblings.
As discussed with the applicant at the hearing, there are aspects of some of the Kiribati documents that might appear unusual. For instance, the marriage record, which the applicant claims relates to his parents, purports to record a marriage on [Date] and gives the parties’ ages as [Ages] respectively. The birth record which the applicant has indicated relates to his birth gives the date of birth as [Date 2], the father’s age as [Age] and the mother’s age as [Age]. The birth certificate for [Ms N], born in [Year], gives the father’s age as [Age] and the mother’s as [Age]. For [Ms O] (born in [Year]), [P] (born in [Year]), [Mr Q] (born in [Year]) and [Mr R] (born in [Year]), the father’s age is given as [Age] and the mother’s as [Age]. When I discussed these documents with the applicant at the hearing, he indicated that he had no idea whether the marriage certificate, for instance, was true and correct. He gave evidence to the effect that he was putting his faith in his biological mother and he was not sure whether she was telling the truth. He indicated that this was what she was sending him from Kiribati. He said he was urging her to tell the truth and make truthful whatever she sent him. When the Kiribati birth records were discussed with him, the applicant said he hoped what she sent him was true and correct. He said he knew something wasn’t right with her in the first place so he was always asking her to be truthful. He indicated that this was what his mother had given him. He referred to trying to find the truth.
On close inspection of the birth certificates, it would appear that the births of [First name] and the other siblings were notified in [Year] and [Year], and that the ages recorded for the parents are related to the timing of the birth registration. While I did raise with the applicant some concerns about these documents, I am willing to accept that the Kiribati birth, marriage and death certificates are genuine. The applicant has also provided documentation from [Country 4] authorities (in particular, the email of 9 April 2021 from the Deputy Registrar of the Registry of Births, Deaths and Marriages) confirming that the applicant was born on [Date 2] in [Country 4] with the name of [applicant name]. This lends some weight to the applicant’s claims in this regard. The applicant has also provided a letter from [Ms G]. In all the circumstances, I accept that the applicant was born in [Country 4] on [Date 2] to parents who were citizens of Kiribati. I accept that the Republic of Kiribati passport reflects his true identity and is a genuine passport issued by the authorities of the Republic of Kiribati. I accept that [Mr F] and [Ms G] are his biological parents, that his father and 2 of his biological sisters have passed away, and that he has 4 remaining biological siblings, namely [P], [Mr Q], [S] and [Mr R].
The applicant’s claims to the effect that he was in [Country 1] because he had been left there by his parents as a child and that he subsequently suffered abuse at the hands of the family he was left with were not claims he made in his initial protection visa application. The applicant has subsequently sought to provide explanations for this, including in relation to the painful nature of the claimed past experiences, having struggled through past experiences and being desperate to find a way out of [Country 1]. At hearing, he referred to matters such as trying to find the truth and having freedom in Australia to speak out. He referred to it having been hard in [Country 1] to get the right information, to being able to see that they were hiding something from him and to urging his mother to tell the truth. I discussed with the applicant at the hearing that he did not appear to have provided evidence in his protection visa application that his family left him in [Country 1] or that he had suffered abuse from the [Alias surname] family. I discussed with him also that he had corrected claims in his original protection visa application, noting that he had originally said that there was violence. The applicant provided further explanations, stating for instance that he hoped he could get freedom of speech when he came here and tell the truth about everything. He referred to having to tell the Immigration officer the whole truth because that would set him free from living under the pretence from when he was in [Country 1]. He referred to wanting to be his real identity and bring the true story instead of continuing to live on falsified documents. He said it was something he did not create and that he just had to come up with something to get away from that bondage and tell the truth. He referred to having to find a way just to get away first and to having to put things right from there. He referred to having lacked freedom to speak while he was with the family and being able to tell the truth while he was by himself. I have had regard to the explanations provided by the applicant. However, I have some doubt that they adequately explain why, in the context of making a claim for protection, he would give information in relation to claimed harm in [Country 1] (namely that there was physical fighting over a land dispute) that he later indicated was not correct (in the Form 1023). This might cast some doubt on the general credibility of his claims about his history and experiences in [Country 1].
However, I am willing to give the applicant the benefit of the doubt and accept that he was left in [Country 1] by his family when he was 6 or 7 as he has claimed and that he subsequently suffered abuse at the hands of the family with whom he was left as claimed. I accept his evidence about the composition of the family with whom he claims to have lived in [Country 1]. I accept his evidence about his education and his employment in [Country 1]. I accept that he lived at addresses in [Country 1] from age 6 until he came to Australia in 2016 (although he also spent a period in [Country 2] in 2011). I accept that he lived with his (then) de facto partner, [Ms A], and her family from 2011. I accept that he has 2 daughters to [Ms A] and that [Ms A] has another child. I accept that he is no longer in a relationship with [Ms A] and that his children are living with [Ms A]’s family in [Country 1]. Although there is limited information about this, I am willing to accept for the purposes of this decision that he is now in a relationship with an Australian woman and has been living with her since 2017.
With regard to his nationality, I accept that the applicant is a citizen of Kiribati as evidenced by his Kiribati passport. As discussed with the applicant at the hearing, the constitution of Kiribati provides that every person born outside Kiribati after the day prior to Independence Day[13] shall become a citizen of Kiribati at the date of his birth if at that date his father is, or would but for his death have been, a citizen of Kiribati.[14] I accept that the applicant’s father was a citizen of Kiribati and that the applicant is a citizen of Kiribati on this basis in spite of being born in [Country 4].
[13] ‘Independence Day’ means 12th July 1979, see section 132(1), The Constitution of Kiribati (1995)
[14] The Constitution of Kiribati (1995), s 25(2), available at >
As discussed with the applicant at the hearing, [section] of the [Country 4] [Citizenship Act] provides that a person born in [Country 4] is a citizen by birth, provided that, at the time of the person’s birth, either or both parents of that person is a citizen.[15] The applicant’s evidence is that, although he was born in [Country 4], neither of his parents was a citizen of [Country 4]. I accept that this is the case. I find that the applicant is not a citizen of [Country 4].
[15] [Section], [Country 4] [Citizenship Act]
With regard to [Country 1], I accept the applicant’s evidence that he did not apply for a visa and find that he did not hold a visa for [Country 1]. He has referred to living there ‘illegally’. [Section] of the [Country 1] [Citizenship Act] provides that a person may apply to the Citizenship Commission to become a citizen. The application must be in the approved form and accompanied by the prescribed fee. While the applicant has been issued with a [Country 1] passport, he confirmed at the hearing that this was not based on his true identity. I find that the passport does not provide a reliable indication that the applicant is in fact a [Country 1] citizen. As discussed with the applicant at the hearing, the [Country 1] Citizenship Act sets out a number of grounds for eligibility for [Country 1] citizenship. Relevantly, s 14(2) provides that a person is eligible to be a citizen if they are aged 18 or over at the time of application, are ordinarily resident in [Country 1] and meet the ‘residence requirement’ and a number of other requirements. The ‘residence requirement’ is defined in s 16 and includes a requirement that the person was not present in [Country 1] as an unlawful non-citizen (within the meaning of the [Immigration Act]) at any time during the 10-year period immediately before the day the person applies for citizenship.[16] Pursuant to [section 1] of the [Immigration Act], a person is an unlawful non-citizen if the person’s entry into or presence in [Country 1] contravenes [section 2]. [Section 2] relevantly provides that a non-citizen who is not an exempt person must not stay in [Country 1] unless the non-citizen holds a visa that is in force.[17] The applicant’s evidence indicates that he stayed in [Country 1] for many years without a visa. I find that he would not satisfy the ‘residence requirement’ for the purposes of [section] of the Citizenship Act. In any event, he has not made an application for citizenship in his true identity. I accept that the applicant is not a citizen of [Country 1].
[16] [Section], [Citizenship Act], available at [URL 4]
[17] [Section 2], [Immigration Act], available at [URL 5]

In all the circumstances, I find that the applicant is a national of Kiribati and no other country. I find that Kiribati is his country of nationality for the purposes of s 5H(1) of the Act. Having regard to the definition of ‘receiving country’ in s 5(1), I find that Kiribati is the relevant receiving country for the purposes of s 36(2)(aa). I must assess the applicant’s claims against Kiribati as his country of nationality. I discussed with the applicant at hearing that, if I were to find that he was only a citizen of Kiribati, I would have to consider his claims against Kiribati.
Claims in relation to [Country 4] and [Country 1]
As discussed with the applicant at the hearing, over the course of the application he has raised claims in relation to [Country 1] including with regard to having suffered abuse there; life being hard and having no place in the family and no hope or home; not having a place to go back to; it being hard to live with his wife’s family; and fearing harm from the family. In his written statement to the Department he raised a number of concerns with respect to [Country 1], including that he might end up in jail if the law found out who he really was (he also expressed concern for the family with respect to ‘illegal adoption’), fear that what he had gone through could happen to his children, fear that the family who raised him might turn against him for telling the truth of who he was, fear of an uncertain future for himself and family, and fear that he had no place to call home or raise his children properly. He referred to lacking immediate family to turn to, lack of proper support from the family, and land dispute being rife within the family he lived with and even his de facto’s family. He stated that he was a nobody if he returned to [Country 1]. He stated that he had been struggling trying to find someone who would love him as a son and a place to call home. He described himself as hopeless. At the hearing, he also referred to arguments over land. I raised with the applicant at the hearing that I might doubt that the things he had said about [Country 1] would give rise to a real chance of serious harm or a real risk of significant harm if he went to Kiribati. The applicant indicated that he understood. He said he had no idea what was going to happen.
The applicant has not identified how the claims that he raised with respect to [Country 1] would give rise to any risk of harm if he were to go to Kiribati. For instance, I do not consider that having lived unlawfully in [Country 1] would put him at any risk in Kiribati. Even accepting that he suffered abuse in [Country 1] in the past and that there is some dispute over land in [Country 1], I do not accept that such matters give rise to any risk to the applicant in Kiribati or that he would be in any way at risk there from the family who raised him in [Country 1]. Nor do I accept that his former de facto’s family would in any way pose any risk to him in Kiribati. It may be that the applicant is concerned for the welfare of his children in [Country 1]. I have had regard also to the concerns he has expressed to the effect that he lacks support, family, love and a home there, and his concerns about the future there. However, I do not accept that the matters he has raised in relation to [Country 1] give rise to a real chance that he would be persecuted in Kiribati for any reason, whether by the family who raised him, the family of his former de facto partner or anyone else. Nor do they give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Kiribati, there is a real risk that he will suffer significant harm at the hands of the family who raised him, the family of his former de facto partner or anyone else.
Similarly, I discussed at the hearing the claims the applicant had raised in relation to [Country 4]. I raised with him that those claims might not seem to give rise to a real chance of serious harm or a real risk of significant harm in Kiribati. In his written statement he referred to matters such as being unsure he could be a citizen, being unsure he could fit their customs and culture and never knowing if he had family in [Country 4]. I have considered these matters but do not accept that they in any way give rise to a real chance that he would be persecuted in Kiribati for any reason. Nor do they give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Kiribati, there is a real risk that he will suffer significant harm.
Kiribati – Claims related to family
In both his written and oral evidence, the applicant raised claims related to his family in Kiribati. For instance, in his written statement to the Department he referred with regard to Kiribati to fear of not knowing whether he would welcomed with open arms by his family, fear of not knowing what the future held for him if he returned to his family since he had been given away when he was around six, and fear that his presence would cause future conflict if he tried to claim his birth rights as a first-born son of [Mr F]. He referred to the ‘custom and culture’ and not wanting to be obliged to the customs and culture. In his statement to the Tribunal, he referred to matters such as not feeling safe to go back to his biological mother in Kiribati, being unsure how his mother would feel and feeling that he had been neglected. He stated that loving his biological mother would not come easily.
At the hearing, the applicant gave evidence about having had some interactions with relatives and family members from Kiribati. There was little in his description of these interactions to suggest that relatives or family member might have any inclination to do him serious or significant harm for any reason. For instance, he gave evidence about having had contact with his mother when he first arrived in Australia. He said that after some time he tried to contact her to really find out who he was and his real date of birth and the truth about himself. He indicated that he contacted her and she provided information. He indicated that they did not have contact after that. He went on to give evidence to the effect that he made contact with her after he came to Australia. When asked how he made contact with her, he said he was on [Social media] and he started seeing people when he put up his profile name according to his true biological parents and some of those people from Kiribati said they were his nieces and nephews and his biological sisters started adding him and they made contact. He started having these questions so he contacted his mother and started asking her about the truth about what had happened to him and what was his real date of birth. He indicated that he was not sure when this was.
When asked later in the hearing about whether he was still in contact with any relatives in Kiribati, he replied in the negative and indicated that he had deleted his account. He said he was seeking the truth but it hurt him so he tried not to contact them as much as he could. He just left things like that and concentrated on what was in the future. When asked what his contact with the family members was like when he was in contact with them, he said they added him on [Social media] and he added them. They started talking to him telling him this and that (like ‘I’m your niece from your sister’). He said he was shocked. It brought him tears but he had to move on. When asked about contact with his siblings, he referred to having had contact with one of his brothers, [Mr Q], for a short time when he was in Australia working on [Location]. He indicated that he was not sure where [Mr Q] was working now. He gave evidence that they had been planning to meet up but it never happened. He talked to [Mr Q] a few years ago but they never really got along. The applicant said it was really hard for him. When asked what he meant when he said they did not get along, he said [Mr Q] always called when he was drunk. He would call and talk about things about families in Kiribati. The applicant said he did not like it when he was drunk and called him. He did not like him. He said he was not used to them. He did not grow up with them so he did not know how to get along with them. That was the only biological brother he used to have contact with. He stopped contacting him because of that. Whenever he was drunk he would call. He just did not like it. The applicant confirmed that his mother got the birth certificates and that all the information from Kiribati was from her.
When asked at the hearing about why he did not want to go to Kiribati, the applicant said he was just not sure what life would be like in Kiribati if he went there. He said he did not know if he would get along with his biological brothers and his mother. He referred to his mother wanting to contact him all the time and ask for help when he was in Australia and indicated that he was not really happy about it. He said the question in his mind was where she was when he needed her the most. This was the time she saw him coming to Australia and wanted to contact him and ask for assistance. To him it was really unfair. I raised with the applicant that he was an adult now and had done a number of different jobs in [Country 1]. He confirmed that he was working in Australia doing [workplace 2] jobs. I raised with the applicant that he had referred to not being safe and perhaps not being welcomed by his family and fear of what the future held and that his presence would cause future conflict. I raised with the applicant that I might wonder why he would face a real chance of serious harm or a real risk of significant harm if he were to go to Kiribati. When asked whether there was anything else he wanted to say about that, he said it would be really difficult going back there and telling them ‘this is me’ and ‘this is my religion’. He said he did not know if they would accept that. I raised with the applicant that I was not sure there was anything from what he had told me that indicated that they did not accept him. He said it was hard for him to tell what they would be like. He said especially with his religion he was not sure they would accept him. Hopefully they would understand because he had become a [Religion 1] and they were Christians so he was not sure about that what was going to happen. When asked when he became a [Religion 1 member], he said quite a long time ago when he was in [Country 1]. He said that was one thing that the families did not like about him because he chose to become different choosing [Religion 1] as his religion. He said most of the families were from a Christian background. They said if he chose to go that path they washed their hands of him if he did not want to listen to the elders. I put to the applicant that from what he said he had had very little to do with the family. The applicant said hopefully they accepted that. I put to the applicant that I might wonder why they would cause him to suffer serious harm or significant harm.
When asked whether he practised as a [Religion 1 member] in Australia, he said in Australia he was very inactive. He had been just spending his time working. He always did what [Religion 1 members] usually do. When asked what that was, he said doing the prayers. He said he just did that at home. He never joined any festivals or 19 day feasts. I put to the applicant that that might seem to suggest that he might not want to do those things. I might wonder why, if he were to go to Kiribati, he could not do the prayer at home the way he did here. The applicant said he hoped they accepted the religion. I put to him that, from what he said, his practice was praying at home. The applicant confirmed this. I put to the applicant that I might wonder why he could not do that in Kiribati. The applicant said it was hard to contact the family members around here because it was a big place. He referred to doing jobs in [workplace 2]. He said definitely if he went to Kiribati he would get much more in contact with the [Religion 1] community. I raised with him that I might wonder why, if he wanted to do that, he had not made efforts to do that in Australia.
Independent evidence (as set out under the heading ‘Independent Country Information’) suggests that people are generally free to practise their religious faith in Kiribati. For instance, with respect to the question ‘Are individuals free to practice and express their religious faith or nonbelief in public and private?’, Freedom House gave Kiribati a rating of 4 (with 4 representing the greatest degree of freedom). Information from the website of the [Religion 1] community of Kiribati (referred to above) indicates that [Religion 1 members] are engaged in a range of activities in Kiribati including devotional meetings and that these activities are held in local communities around the country. [Percentage] of the Kiribati population are [Religion 1 members]. I consider that the independent information indicates that there is generally religious tolerance in Kiribati and that [Religion 1 members] are able to practise, including in public, around the country. I am willing to accept that the applicant is [a Religion 1 member]. This claim is consistent with information provided in his protection visa application. The applicant’s evidence indicates that his activity in Australia consists of doing prayers at home. I find that he would be free to do this in Kiribati. While I accept that he may have been working [at workplace 2] in Australia, his evidence suggests that he has done little to seek to involve himself in any public [Religion 1] activity in Australia. I have some doubt that he has any genuine interest in involving himself in public activity as a [Religion 1 member] or that this is an element of how he wishes to practise the faith. Nevertheless, the independent information indicates that [Religion 1 members] engage in a range of public activity in Kiribati. I consider that the applicant would be able to engage in such activity without facing a real chance of serious harm and without this giving rise to substantial grounds for believing that there is a real risk that he will suffer significant harm.
The applicant referred to family not accepting him. However, when asked initially about what his contact with family in Kiribati was like, his evidence did not suggest that they were not accepting of him because of his religion. Although he said it would be difficult going to Kiribati there and telling them his religion, he said he did not know if they would accept that. When I put to the applicant that I was not sure there was anything from what he had told me that indicated that they did not accept him, he said it was hard for him to tell what they would be like. While it may be that the applicant is uncertain about how family members in Kiribati would regard his religion and it may be that people in [Country 1] were not entirely accepting of his religion, I do not accept that the family members from Kiribati with whom he has had contact have, during the course of their limited interaction, provided any indication that they do not accept him because of his religion. The independent information indicates that there is generally religious tolerance in Kiribati and that [Religion 1 members] practise their faith there. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the applicant would be persecuted in Kiribati, by family members, relatives or anyone else, for reason of his [Religion 1] faith. Nor do I accept that his [Religion 1] faith gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm.
With regard to the applicant’s relationship with his family in Kiribati more generally, it may be that the applicant’s parents left him in [Country 1] when he was 6 or 7 but this is now many years in the past. His evidence indicates that he had some contact with his mother who assisted him with documents. It may be that she asked for money and he has not had ongoing contact with her. It may be that he feels his mother has neglected him in the past, that he is uncertain how his mother would feel and that he would not find it easy to love his biological mother. It may also be that he did not like his brother who would ring up when he was drunk. While this is not something that the applicant specifically referred to at the hearing, I accept that he is a first born son as he has claimed and am willing to accept that he might in the future seek to assert his rights as a first born son. However, I do not consider that the limited contact the applicant has had with immediate family members from Kiribati provides any indication that they are in any way inclined to do him serious harm or significant harm for any reason. His evidence indicates that he had contact with other relatives in Kiribati on [Social media]. Notwithstanding that the applicant did not continue contact with these people, his evidence suggests that these people sought to provide him with information about family. I note also that the independent evidence indicates that Kiribati is a country where civil liberties are generally upheld.
I have carefully considered all of the claims and evidence with respect to the applicant’s biological family. As discussed above, when I raised with the applicant that I might wonder why he would face a real chance of serious harm or a real risk of significant harm if he were to go to Kiribati, the applicant made reference to his [Religion 1] faith and the issue of acceptance of his faith by his family. I have considered the claims raised by the applicant at the hearing with respect to his [Religion 1] faith but do not accept that there is a real chance that the applicant would be persecuted in Kiribati, by family members, relatives or anyone else, for reason of his [Religion 1] faith. I have been willing to accept that the applicant might seek to assert rights as a first-born son and have had regard to this in making my findings. I accept that he regards his mother as having neglected him in the past, that he may feel uncertain about his relationship with her and other family members, and that he may not find it easy to love his mother. It may be that the applicant did not continue contact with his mother and his brother as claimed. However, the applicant has had some contact with family members and I do not accept that this contact provides any indication that family members are inclined to do the applicant serious or significant harm for any reason. On the available evidence, I am not satisfied looking to the reasonably foreseeable future that there is a real chance that the applicant’s family members or relatives in Kiribati would do the applicant serious harm for reason of his religion or any other reason. Nor do I accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm at the hands of family or relatives in Kiribati.
In making these findings, I have had regard to the instances of serious harm in s 5J(5) (although I am conscious that this is not an exhaustive list), to the definition of significant harm in s 36(2A) and to the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1).
In making these findings, I am conscious that the applicant made claims at the hearing that appeared to relate to gender identity and sexuality. However, for reasons set out below, I do not accept that he would genuinely wish to live in Kiribati other than as a man or that he would genuinely wish to engage in relationships with men.
Kiribati - Mental Health
I note that, in his written statement to the Department, the applicant referred to mental health conditions and to having attempted to commit suicide. Although this was not something he raised at hearing when asked about why he did not wish to go to Kiribati, I nevertheless discussed with this with him at the hearing.

I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. I have had regard to matters such as his family history and circumstances, religion, mental health, and the fact that he would be establishing himself in a place in which he has limited experience and with which he has limited connection. However, even having regard to all of his circumstances cumulatively, I am not satisfied looking to the reasonably foreseeable future that there is a real chance that he would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that he is a refugee as defined in s 5H(1).
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Cumulative Consideration – Complementary Protection Criterion

100. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
101. I have considered the applicant’s claims with respect to his family. However, for reasons set out above, I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm from family or relatives in Kiribati. I have considered the applicant’s religious faith. I do not accept that his [Religion 1] faith gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I have considered the applicant’s mental health. For reasons set out above, I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in connection with his mental health status. I have considered claims with respect to custom and culture, but do not accept that there are substantial grounds for believing that the applicant will suffer significant harm in connection with custom and culture or at the hands of elders. I do not accept that the challenge associated with establishing himself in a place in which he has limited experience and with which he has limited connection in itself constitutes significant harm or gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. In all the circumstances, I do not accept that any separation from his Australian partner would constitute significant harm or that it gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I have considered the applicant’s claims relating to gender identity and sexual orientation but do not accept that these are matters that in any way give rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I do not accept that there are substantial grounds for believing that there is a real risk that he will suffer significant harm in connection with sexuality or gender identity.
102. I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. I have had regard to matters such as his family history and circumstances, religion, mental health, and the fact that he would be establishing himself in a place in which he has limited experience and with which he has limited connection. However, even having regard to all of his circumstances cumulatively, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Kiribati, there is a real risk that he will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Consideration of section 91WA

104. Given the findings above, it is not necessary to consider s 91WA. Nevertheless, I have done so for the sake of completeness.
105. Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a bogus document as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s 91WA(2). Section 91WA and the definition of ‘bogus document’ are extracted in the attachment to this decision.
106. As set out above, in support of his protection visa application the applicant provided the Department with a [Country 1] passport and a birth record from [Country 1]. The passport gave his name as [Alias – first and third names], his date of birth as [Date 1] and his place of birth as [Village 1], [Country 1]. He also provided a record from the [Country 1] Register of Births (the birth record). This appears to record the birth of [Alias – first and third names] in [Village 1], [Province 1] on [Date 1]. It names the parents as [Mr D] and [Ms E], and identifies them both as [Nationality 1]. The document was issued [in] March 2007.
107. At hearing, I discussed with the applicant the effect of s 91WA and the definition of ‘bogus document’.
108. At the hearing, I raised with the applicant that it might appear that [Country 1] passport and the birth record were obtained because of a false or misleading statement that he made to [Country 1] authorities. The applicant said if he told the truth to the [Country 1] government it would backfire to the family he was living with. He did not want that to happen. He felt compassionate. He felt he did not want anything like that. He had to go along with it because he had been living with that family in that name so he just had to continue on accessing a passport with that information because that was what he had in hand at that time.
109. With regard to his birth certificate, I raised with the applicant at hearing that he had referred in his written statement to filling in a form that was quite complicated. When asked what he had put in the form, he said he just put all the names like the name [Alias – first and third names]. He said before doing that he sought assistance from [Ms E]’s sister. She was the one who had more knowledge of how to go about things. The applicant indicated that she gave him advice and helped with information. The applicant confirmed that, in the form he completed for his birth certificate, he said his mother was [Ms E] and his father was [Mr D] and that he was born in [Village 1], [Island 1]. The applicant said that to tell the truth was too hard for him because he was with the family he was with. The applicant confirmed that he also filled out a form to get the passport. He indicated that he gave the same information about who his biological parents were and where he was born. I raised with the applicant that those might appear to be false statements. The applicant agreed. He said that was why during the interview he had to tell the truth to the interviewer.
110. I find that both the [Country 1] passport and the birth record are bogus documents. The applicant’s evidence indicates that, to obtain both documents, he made false or misleading statements with respect to the identity of his parents and his place of birth. I reasonably suspect that both documents are documents that were obtained because of a false or misleading statement. I find that he provided the documents as evidence of his identity and nationality in connection with the protection visa application.
111. I am conscious that the applicant has now provided a Kiribati passport and I have accepted this as genuine. I have considered whether the applicant has a reasonable explanation for providing the bogus documents, an issue I discussed with the applicant at the hearing.
112. In the course of his evidence at the hearing, the applicant said he hoped when he came here he could get freedom of speech and tell the truth about everything about him. When he had the interview with the Immigration officer he had to tell them the whole truth because he believed that would set him free from living under the pretence when he was in [Country 1]. He wanted to be the real identity, who he really is instead of living under the pretend name. To bring the true identity and the true story instead of continuing to live on falsified documents. He said it was something he did not create but it was something he was going through. He just had to come up with something to get away from that bondage and tell the truth. Because he believed if he told the truth he felt free and the burden lifted from his shoulder. I asked the applicant why he did not tell what he said was the truth in his protection visa application. The applicant said according to the time and place he had to find a way just to get away first. From there he had to actually put things right. When he came here that was where he could put everything to light because he would not have freedom to speak if he was with the current family he was with. So while he was by himself here he could tell the truth about who he was without any intervention or anyone knowing from the family he grew up with.
113. When asked about whether there was a reasonable explanation for providing what might appear to be bogus documents, the applicant said he did not know where else to go. He did not know what to say to the [Country 1] department. He just had to go along with the name he had in hand. If he told them the truth he did not know what would happen. I raised with the applicant that the question related to why he provided those documents in Australia. I raised with the applicant that, even if he said he thought he had to get those documents in [Country 1], I might wonder about whether there was a reasonable explanation for providing a bogus document in connection with the protection visa application. The applicant said the reason was that it was the only way he could find to get out from where he was in the first place. From there he could put things right while he was here.
114. I raised with the applicant that it appeared that the [Country 1] passport was issued on 11 February 2011 and the birth record on 8 March 2007. I noted that he had provided evidence later on of going to the [Country 4] authorities and making inquiries of them. It appeared he had emailed the Consulate General on 5 April 2021 and by 9 April 2021 they emailed him back saying they had been able to locate a birth registration; it appeared that by [Date] he had been issued with a Kiribati passport. I noted that this all seemed to have happened fairly quickly after when he seemed to have contacted the [Country 4] authorities. I asked the applicant why he had not taken those steps before and raised with him that it might seem that he was capable of getting a Kiribati passport. The applicant said according to time. When he was here he had to contact his mother about all these things. While he was doing that, he contacted the [Country 4] commissioner to cross check if she was telling the truth or not. He said he did those things. He said he should have done those things before but it just came to mind when he decided to stop living under this pretence, this fraudulent identity. He said it was not good. To him it was not right. He had to find out who he was. I raised concerns with the applicant, including that it might seem he knew the identity documents he was giving to the Department when he made his application were not accurate. I noted that he had also talked to the Department about waiting for the right time and not wanting a bad image for his family. I noted that he had said that some of the things that happened in the past were painful but I might need to think about whether that provided a reasonable explanation because he was applying for a protection visa and making claims for a protection visa and that was a confidential application. The applicant went on to say that when he was here with the falsified documents this gave him the time to try and work through his true identity. It was just the timing. He just really did that when he contacted his mother and she was willing to help. With that space, that little window of time, she cooperated and that was how he got that information from her. He referred to the little window of time when she was willing to cooperate. He said he had to send money to her so that she could quickly do all this information. He provided money to help with the paperwork. She asked for it. The applicant said also that these were the only documents he had with him at the time; he should not have provided those but it was the only documents he had with him at that time. He did not know how to go about getting the legal way to do things so he just did what he did according to his knowledge and understanding.
115. I have had regard to all of the applicant’s explanations and evidence about this and about his circumstances in [Country 1]. I note that the applicant has made claims to the effect that he was in a situation that was not of his own making, that he did not know what else to tell the [Country 1] authorities, that it was his only way to get out of [Country 1] and that he had to find a way to get away. I am willing to accept that the applicant’s situation in [Country 1] was not of his own making and that he may have made false or misleading statements to the [Country 1] authorities in order to obtain the birth record in 2007 and the passport in 2011 because he saw this as the only way to get out of [Country 1]. However, the question is ultimately not whether there was a reasonable explanation for the provision of false or misleading statements to the [Country 1] authorities in the course of obtaining the documents but whether there is a reasonable explanation for providing the bogus documents in connection with his protection visa application. Even if the applicant saw the provision of false or misleading statements to the [Country 1] authorities as his only way of removing himself from his situation in [Country 1], I do not accept that this in itself provides a reasonable explanation for providing the bogus documents in connection with his protection visa application following his arrival in Australia. I have had regard to the applicant’s submissions about matters such as not having freedom to speak in [Country 1] and about having concerns in relation to his family there. Again, this might help explain his conduct in [Country 1] but I do not accept that it provides a reasonable explanation for the provision of bogus documents in connection with his protection visa application. I am willing to accept that the applicant’s experiences in [Country 1] were painful, that this may also have had a bearing on obtaining bogus documents in [Country 1] and that it may not be easy to reflect on these past experiences. However, I do not accept that this provides a reasonable explanation for the provision of the bogus documents in connection with the protection visa application in Australia.
116. I have had regard to the applicant’s submissions with regard to matters such as timing, being able to put things right and it taking time to work through his true identity once he was in Australia. I note that he referred to it being hard to get the right information in [Country 1]. I am willing to accept that the applicant made contact with relatives in Kiribati after arriving in Australia and that, through his mother, he then found out further information about his true identity. It may be that he would then have been in a position to provide additional information to the Department. However, even if this is the case, I consider that the evidence indicates that the applicant was aware that information on which the [Country 1] passport and the birth record were based (for instance, with respect to his parents and his place of birth) was not correct. I note that in his written statement to the Department the applicant stated in relation to the [Country 1] birth certificate that he knew that what he was doing was ‘illegal’, although he said that he could not help it because he did not create the situation. While he may have discovered more information while in Australia and this may have taken some time, I do not consider that this provides a reasonable explanation for the provision of the bogus documents in connection with the protection visa application. I am willing to accept that the applicant had not obtained other documents, such as a Kiribati passport, at the time of making the protection visa application. However, I do not accept that this provides a reasonable explanation for providing the bogus documents, particularly in circumstances where the evidence indicates that the documents the applicant did provide were based on information that he knew was not correct. I have had regard to the applicant’s submissions about his knowledge and understanding and not knowing the legal way. However, even if the applicant’s knowledge of the Australian immigration system was limited, I consider that he was aware that he was providing documents that were not based on accurate information. I do not consider that there is a reasonable explanation for the provision of the bogus documents.
117. I have considered all of the applicant’s submissions about this and all of his circumstances. However, I am not satisfied that there is a reasonable explanation for the provision of the bogus documents.
118. In all the circumstances, I find that the applicant provided bogus documents (in the form of the [Country 1] passport and the birth record) as evidence of identity, nationality or citizenship. I do not accept that he has a reasonable explanation for providing the bogus documents.
119. For the reasons given above, s 91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s 91WA.
DECISION
120. The Tribunal affirms the decision not to grant the applicant a protection visa.
Don Smyth
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly

…
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.
…
91WAProviding bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)     the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b)     the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.

(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)has taken reasonable steps to provide such evidence.

(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

[2024] AATA 4284

10 October 2024

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