2205754 (Refugee)
[2025] ARTA 1138
•28 February 2025
2205754 (REFUGEE) [2025] ARTA 1138 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2205754
Tribunal:General Member S Waring
Date: 28 February 2025
Place:Brisbane
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual woman – no disclosure and one discreet relationship now ceased – parents’ questioning about marriage and children – fear of harm from family and community, and denial of job opportunities – consistent and plausible evidence – country information – widespread harassment and discrimination – national and state laws – modification of behaviour not applicable – real chance of harm in all areas and effective protection measures not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(a), (b), (4)(b), (c), 5L, 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AKA24 v MIMA [2024] FedCFamC2G 1434
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 18 September 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 18 April 2022 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 3 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Migration Act 1958 (the Act).
BACKGROUND
The applicant, a [Age]-year-old female, last arrived in Australia on [in] June 2019 on a visitor visa and applied for a protection visa on 18 September 2019.
According to the protection visa application, the applicant was born in [Location 1] and settled in [Location 2] Qld upon arrival in Australia. In or around April 2023 the applicant moved to [City] in QLD.
The applicant’s parents (both citizens of [Country 1]) live in Selangor, Malaysia. The applicant has two brothers.
The applicant discloses she is of Malay ethnicity and a follower of the Islam religion.
Evidence before the Department and the Tribunal
No interview was undertaken by the Department. Before the decision under review was made, the department wrote to the applicant on 1 March 2022, raising specific concerns about claims made in the protection visa application including her claims about her sexuality and harm suffered in Malaysia.
To address those concerns, the applicant was requested to provide supporting evidence and further detail of her claims. As the applicant did not respond to that request, the evidence taken into account by the Department included:
· the applicant’s protection visa application.
· supporting documents including personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, a movement record of the applicant’s entry into Australia is also before the Tribunal.
After the hearing, the applicant contacted the Tribunal to provide documents establishing that her family name is not [Surname]. These documents, sent as email attachments on two occasions, could not be opened at the Registry. Having no evidence of a different name by which the applicant should be addressed, this decision identifies the applicant by the name appearing on her protection visa application and her application for review by the Tribunal.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of her Malaysian passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is her receiving country for the purposes of assessing her claims for protection.
Assessment of claims made in the visa application
The protection visa application sets out claims summarised as follows:
·I am a lesbian. My sexual orientation is towards my own gender.
·I have been struggling to understand my sexuality my whole life and it was always hard for me to fit in into the society as I get older. I have always been attracted to my own gender.
·I never told anyone in Malaysia about my sexuality because of the reactions towards this issue in the country. My sexual orientation has always been a big secret.
·Over time the secrecy around my sexual orientation became bigger and left me with a 'big giant black hole in my heart'.·I would not be able to embrace my sexuality in my country because I am a Muslim and Malaysia is an Islamic country.
·It is a suicidal move to remain in any part of the country and live freely as Lesbian.
·If I return to Malaysia I will be labelled as a “demonic influence to the community” which is very strong and very conservative. I believe they will not leave me alone because they consider I follow a sinful and shameful way of living.
·If I return to Malaysia I definitely will face harm and mistreatment from my family, my circle of community and my work area. I may be denied job opportunities, chances to have my own family, and to express any of my opinions.
·If I return to Malaysia I would be brought to the authorities for breaching Syariah law which governs the country. Regulation for Muslims in the LGBTQ community is very non-friendly and allows no chance for LGBTQ rights.
Sexuality
The applicant claims that she is part of a “particular social group” which enlivens Australia’s protection obligations because she is a lesbian.
At hearing, the applicant told the Tribunal that she grew up with [brothers] but had little contact with them after they were married and moved away. Her parents worked long hours and as a result she did not get a lot of their attention as a child. The applicant’s parents were not very strict about Muslim core values but they did teach her how to dress (and do things) in the Muslim way.
The applicant stated that her school was not very strict. The applicant became very independent as a child and formed the view that the Muslim religion itself says “you can’t be like this, must be like that.”
The applicant’s oldest brother moved away from the family home when the applicant was 15 years of age. The brother closest to her in age moved away from the family home earlier - when she was 13 or 14 years old.
The applicant recalled that her first awareness of wanting to “choose to be with women” came to her after her brothers had left home. The applicant confirmed that she would have been approximately 15 years of age when this occurred and she recalls having ‘strong feelings like that’ after her brothers had moved away.
The applicant did not inform her parents of these developing feelings. It was the applicant’s evidence that she “…didn’t think they would be able to accept my choice – they would stop me. I wouldn’t dare tell them I liked the same sex… they would be disappointed.” This was not a topic the applicant ever discussed with her brothers.
The applicant stated that she continues to maintain secrecy around her sexual identity and hopes that her parents “do not know what is going on in Australia”. When she is (and has been) asked by her parents about her plans to marry, the applicant stated that she replies “It is not the right time yet – maybe another 5-6 years. Maybe if I find someone, I will get married.”
The Tribunal heard that the applicant wanted to be ‘far away’ from questions about her relationship status and plans to start a family. If she had disclosed her same-sex attraction to her parents, the applicant thought “maybe there’d be angry words and they wouldn’t want me in the house. They will not treat me in a gruff manner but would be sad & disappointed. Maybe they would reject me as their child .”
The applicant stated that in [Year] (when she was aged 16) she moved away from her hometown and commenced working in Kuala Lumpur as [an occupation]. The applicant continued in this line of employment until departing for Australia in 2019.
When the applicant first started working, she did not share personal information widely although (after some time) she did disclose her feelings of same-sex attraction to one close work friend. There was no romantic relationship between the applicant and that friend. The friend’s response to the applicant was “if it’s going to make you happy just continue with it.”
Around the time the applicant shared this confidence with her friend she confirmed in her own mind that she “preferred the female – not so much the male.” This occurred in the context of her receiving unwelcome advances from men when she was working. The applicant explained that “guys would approach me wanting to become close” which made her uncomfortable so she realised she “didn’t want men.” The applicant told the Tribunal that around this time she knew she had formed the preference for women because “they are more understanding.”
The Tribunal was told that the applicant first acted upon her same-sex attraction in May 2013. The applicant stated that “the first time it happened was when i had already started working.” When carrying out a sale transaction at work, the applicant met a female named [Ms A] who worked in the same store. The applicant explained that they felt an immediate attraction, began communicating by phone and text and moved in together (in [Ms A]’s apartment) three months later.
The applicant stated that she and [Ms A] lived together “under the same roof for three years.” The applicant recalled that [Ms A] “wore clothes like a tomboy” but provided no other personal or identifying details about her. The applicant was unable to recall the address where they had co-habited – saying that “2013 is so long ago.”
When describing her relationship with [Ms A] to the Tribunal, the applicant stated:
· They shared the rent (MYR 850 each per month) but not a bank account. [Ms A] would pay the landlord in cash on the first day of each month. The applicant would give her share of the rent to [Ms A]. The applicant described the rent as being very affordable.
· They did not “show themselves as a couple” believing that was “for their own good”.
· Nobody took any notice of them and they hardly saw anyone as they went to work together in the morning and did not return until late in the afternoon.
· “I did not reach out to anyone apart from my partner [it was] just myself and my partner.”
· Their relationship ended in November 2015 when it became clear that [Ms A] was involved in another same-sex relationship. She and [Ms A] quarrelled and the applicant decided to move out.
The Tribunal asked the applicant to disclose the reasons why she considered herself to have been in a same-sex relationship (rather than a friendship) with [Ms A]. The applicant responded that they “discussed together, made decisions together and were compatible with each other and agreed to be together and live together.”
Between November 2015 and June 2019, the applicant stated that she lived independently of her parents as she “needed her freedom and didn’t want to be controlled.” She lived in a vacant room she had found online.
The applicant stated that in her social life, during this period she “did not mix with anybody because she worked long hours 10am to 11pm and did not have time to mix with anyone” in the lesbian community.
The applicant’s evidence is that she has not been part of a same-sex (or other) relationship since [Ms A] was her partner.
At the conclusion of the hearing, the applicant addressed the Tribunal with the question “… people like me, are they not eligible to stay here?”
The Tribunal is mindful that a paucity of past same-sex relationships is not fatal to a finding that the applicant is a same-sex attracted person. Having regard to the applicant’s acrimonious parting of ways with [Ms A], the Tribunal considers it not to be unreasonable that the applicant does not present evidence from [Ms A] (corroborating their relationship) to the Tribunal. And further (having regard to the strict secrecy the applicant has maintained about her same-sex attraction) the Tribunal considers it not to be unreasonable that the applicant has not presented evidence from witnesses to illustrate ways in which the applicant has expressed her sexuality in public.
The Tribunal found there to be an overall consistency and plausibility in the applicant’s recounting of significant events in her personal (and relationship) history in Malaysia. The Tribunal accepts that the applicant is (and has long been) anxiously intent upon keeping her same-sex attraction secret from her parents and the wider community.
The Tribunal accepts that (as claimed) the applicant has struggled to understand her sexuality her whole life. Even now that she is [Age] years old, the applicant described herself to the Tribunal as “people like me”. The Tribunal accepts (as claimed) that the applicant continues to find it hard “to fit in into the society” as a same-sex attracted person.
The Tribunal accepts that the applicant had a past same-sex relationship in Malaysia and is a lesbian as claimed.
Harm experienced in Malaysia
The applicant did not cite any instances of harm or harassment directed at her in Malaysia because of her sexuality. There was however, one occasion when she was accosted by a member of the public who observed her in physical contact with [Ms A]. The applicant was unable to state when (during her relationship with [Ms A]) this incident occurred.
The applicant explained that she and [Ms A] were in a shopping mall and were holding hands and hugging one another. It made the applicant feel uncomfortable when a person approached them asking if they were in a relationship. The bystander said to them “this is not how it is supposed to be – you should be in a relationship with a man…it cannot be like this.”
The Tribunal asked the applicant why (on that occasion) she and [Ms A] had not been secretive about their relationship The applicant responded that she had not thought people would see them and it had been the first time they had shown affection in public.
The applicant stated at hearing that she had not been harmed physically in Malaysia and this evidence is accepted by the Tribunal.
Harm experienced by suppression of sexuality
The applicant told the Tribunal that she was fearful of people identifying her and [Ms A] as a couple. The applicant explained that she went to considerable lengths to prevent her parents becoming aware of her relationship with [Ms A]. For example the applicant did not allow her parents to visit her at home while she was living with [Ms A]. Instead, the applicant would always be the one to make visits (which required a 4 hour return journey from Kuala Lumpur).
The applicant indicated that she and [Ms A] isolated themselves as a couple throughout the relationship on the basis that it was “for their own good.”
In other oral evidence given to the Tribunal, the applicant described her motivations for keeping her sexual identity secret in Malaysia as including:
· Her belief that she would be discharged if her employer learned of her same-sex attraction.
· Her fear that her family (particularly her parents) would be disappointed – even to the point of rejecting her as their child.
· Her fear that the family’s name would be tarnished if her sexuality became known to the wider community.
· Not wishing to upset her parents with ‘honest’ responses to questions about marrying or having a boyfriend. These frequent questions reportedly made the applicant very uncomfortable.
Having regard to the incident (in the shopping mall) described above, the Tribunal finds that the applicant had the desire to demonstrate affection for her partner in public places but refrained from doing so to avoid unfavourable responses from the community. By actions such as these (and those listed above), the Tribunal finds that the applicant was suppressing her sexual identity.
The Tribunal finds that the applicant experienced harm in Malaysia as a result of supressing her sexual identity.
Criteria for 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.
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.
REASONS AND FINDINGS
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
As observed above, the Tribunal is satisfied that the applicant’s identity is as claimed and that she is a citizen of Malaysia. Malaysia is found to be the applicant’s receiving country for the purpose of this application.
On the basis of the evidence provided the Tribunal finds as follows:
· The applicant is a lesbian and was in a same sex relationship in Malaysia.
· For the purposes of s5L the applicant is to be treated as a member of a particular social group comprising lesbian Muslim women from Malaysia with past same sex partners.
The Tribunal accepts the applicant’s claim that she is part of a “particular social group” which may enliven Australia’s protection obligations.
The Tribunal has found that the applicant suffered emotional harm in Malaysia as a result of supressing her sexual identity. The Tribunal accepts that this emotional harm manifested in the applicant’s struggle to understand her sexuality (from age 15), to fit into the society (as an adult) and in the secrecy which the applicant describes as having caused a “big giant black hole in [her] heart that is always empty.”
The applicant told the Tribunal that she remains intent upon ensuring her parents do not become aware of her same-sex attraction. The Tribunal accepts that the applicant is committed to secrecy on the issue of her sexuality and, if returned to Malaysia, she would continue to struggle with an understanding of her sexuality and live her life avoiding displays of same-sex attraction. The Tribunal accepts that the applicant does not wish to repress her sexuality and holds a subjective fear that (for her own good) she would be forced to do so if she returns to Malaysia.
As observed by Kendall J. recently, decided cases have “enshrined the principle that a person claiming harm as a refugee because of a central part of their personal identity (such as their sexuality or political opinion) should not be denied protection because they are seen to have the “option” of hiding that part of their identity. Hence, it should not be assumed, for example, that a lesbian or gay male can avoid harm by acting “discreetly” – a finding which is in and of itself harmful to the individual.”[1]
[1] AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434 at [67]
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[2]
[2] Chan Yee Kin v MIEA (1989) 169 CLR 379
For the reasons stated above, the Tribunal is satisfied that the applicant meets the subjective requirement in s 5J(1)(a) as she does in fact hold a fear of being persecuted in Malaysia as a member of a particular social group comprising Muslim lesbian women from Malaysia with past same sex partners.
The s 5J(1)(b) objective requirement relating to ‘real chance of persecution’ is considered below in light of various sources of published information specific to Malaysia.
The Department of Foreign Affairs & Trade published a Country Information Report – Malaysia on 24 June 2024 (the DFAT report[3]) stating:
· As a conservative Islamic nation, Malaysian authorities are intolerant of LGBT identities and conduct.
· Same sex acts constitute offences for the purposes of the Penal Code.
· LGBT persons face a high risk of official discrimination and a moderate risk of societal discrimination, which may include prosecution, “re-education”, exclusion from public spaces, housing, and employment opportunities and a moderate risk of societal violence.
[3] Para 3.148
In Freedom in the World 2024 – Malaysia (25 April 2024), Freedom House states that LGBT+ Malaysians face widespread discrimination and harassment.
In its 2023 Country Report on Human Rights Practices: Malaysia, dated 23 April 2024, (the US country report) the United States Department of State advises that all same-sex sexual conduct is illegal under federal law in Malaysia. Violence against lesbians is common and is perpetrated and condoned by authorities such as the police. Discrimination based on sexual orientation, gender identity and expression is not prohibited in Malaysia and LGBT people experience discrimination in employment, housing and access to some government services.
The US country report warns that violence against lesbians is common in Malaysia and is perpetrated and condoned by authorities such as the police. The DFAT report[4] identifies that authorities at both federal and state levels promote LGBTQIA+ ‘Conversion Therapy’ throughout Malaysia (particularly targeting Muslims such as the applicant) with coercion being applied in many cases
[4] Paras 3.132-134
In World Report 2024: Malaysia (11 January 2024), Human Rights Watch reports that state-sponsored discrimination against LGBT people is pervasive and condoned in Malaysia.
Under the Malaysian Penal Code 1936 consensual adult same-sex acts are criminalised as “Unnatural Offences” (ss 377A and 377B) and “Outrages on Decency” (s 377D).
Section s 377D of the Penal Code provides:
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.
The Malaysian Federal Court has ruled that it is the courts’ responsibility to determine what constitutes gross indecency for the purpose of 377D[5] because ‘acts of gross indecency’ for the purposes of s 377D are not defined.
[5] Sukma Darmawan v Ketua Pengarah Penjara [1992] 2 MLJ 241
In 2024, the Human Dignity Trust opined[6] that the criminalisation of consensual same-sex acts (as is the case in Malaysia) ‘fosters a climate of state-sanctioned stigma, resulting in abuse, discrimination and violence’, and that:
The criminalisation of consensual same-sex intimacy undermines the rights of lesbians and bisexual women to privacy, equality, dignity, freedom of expression, physical and sexual autonomy, freedom from violence, an adequate standard of health, and removal of gender stereotypes...
[6] Breaking the Silence: The Criminalisation of Lesbian and Bisexual Women and its Impacts (2024)
In 2021, the International Commission of Jurists published its view that in Malaysia, s 377D of the Penal Code places LGBT persons under a constant threat of ‘arrest, invasion of privacy, and extortion’.[7]
[7] Invisible, Isolated, and Ignored: Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia (2021)
Having regard to the content of published materials set out above, the Tribunal finds that the s 5J(1)(b) objective requirement (relating to ‘real chance of persecution’) is satisfied in this case. The Tribunal finds that:
· There is a real chance of the applicant experiencing significant mental and emotional harm, threats to her liberty and significant discriminatory treatment by the Malaysian authorities and community at large, which constitutes serious harm as defined in s 5J(5), if the applicant were to be forced to return to Malaysia now or in the reasonably foreseeable future.
· The harm and treatment referred to above constitutes serious harm under s 5J(4)(b) and systematic and discriminatory conduct under s 5J(4)(c).
· The essential and significant reason for the serious harm is the applicant’s membership of a particular social group being Muslim lesbians from Malaysia.
· There is no modification of behaviour requirement applicable in this case pursuant to s 5J(3)(a) or (b).
· The applicant has a well-founded fear of persecution if she is forced to return to Malaysia now or in the reasonably foreseeable future.
As mentioned above, the Tribunal finds that the applicant is a lesbian who does not wish to suppress her sexual identity. The applicant has, for example, the desire to demonstrate affection for a same-sex partner in public places in the future. Based on current country information citing the plight of LGBT people throughout Malaysia, the Tribunal finds that in the applicant’s circumstances:
· The real chance of harm applies to all areas of Malaysia.
· Effective protection measures are not available to the applicant anywhere in Malaysia.
There is no indication in the materials before the Tribunal that the applicant has a right to enter and reside in any country apart from Australia. The Tribunal finds therefore, that the preclusion specified in s36(3) is not engaged.
For the reasons given above, I am satisfied and find that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1)Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5HMeaning of refugee
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.
…
5JMeaning of well-founded fear of persecution
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.
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.
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:
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;
conceal his or her true race, ethnicity, nationality or country of origin;
alter his or her political beliefs or conceal his or her true political beliefs;
conceal a physical, psychological or intellectual disability;
enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
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.
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.
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.
5KMembership 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:
the first person has ever experienced; or
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.
5LMembership 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:
the characteristic is an innate or immutable characteristic;
the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
the characteristic distinguishes the group from society; and
(d)the characteristic is not a fear of persecution.
5LAEffective protection measures
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:
the relevant State; or
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.
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.
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Protection visas – criteria provided for by this Act
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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:
is mentioned in paragraph (a); and
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:
is mentioned in paragraph (aa); and
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.
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