2218136 (Refugee)

2218136 (Refugee) [2024] AATA 4208 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2218136
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:David McCulloch
DATE:9 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 September 2024 at 3:22pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – sexuality – applicant was persecuted for being homosexual – a particular social group of gay men – the persecution that the applicant is at risk of is systematic and discriminatory – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Luu & Anor v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 November 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 citizen of Sri Lanka, applied for the visa on 26 September 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 September 2024 at 10am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Sri Lanka, 2 May 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, protection criteria are met. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and claims
The Tribunal notes in the following from the application form for the protection visa. The applicant was born on [date] in [Town 1], Sri Lanka. The applicant is a Catholic and lists his occupation as [an occupation]. The applicant has never been married or been in a de facto relationship. The applicant lists his parents and two brothers living in Sri Lanka. The applicant indicates that from [date] September 2014 until [date] September 2015 he was in [Country 1].
The applicant lists multiple addresses in Sri Lanka and jobs as follows (unedited):
[Details deleted].
The applicant indicates completing high school without indicating the date. The applicant studied [at] a rural vocational training centre without indicating dates.
The applicant lists that at the time of the application he is employed by [Employer 1].
In the application form for the protection visa the applicant says he left Sri Lanka because he was persecuted for being homosexual and was fortunately able to find a job overseas. The applicant indicates that he was mistreated by aspects of society to the point that he contemplated suicide. He indicates that if returned the same mistreatment will continue. The applicant refers to harm experienced as set out in his statement (below). The applicant indicates there is nowhere safe for him in the country. Even the police will not help as they have nothing but contempt and ridicule for homosexuals. The applicant indicates that he relocated internally but still faced harm. The applicant indicates that authorities will not protect him. He indicates he will face harm throughout the country.
As part of the application for the protection visa, the applicant provided a statutory declaration dated 25 September 2018 as follows (unedited):
I am scared to return to Sri Lanka because if I return my life will be in danger. This is because (i) there is a real chance that I might self-harm and (ii) I might be seriously harmed by others. I was also subject to cruel, inhuman or degrading treatment. I was persecuted in Sri Lanka because I am a gay person.
This Statutory Declaration (as well as the visa forms) have been prepared in a hurry and may have many errors as I didn't have time to think them through. I only had one day (today 25-09-18 and only few hours today as Mr [A] had other work and I myself had to run around and find a place to stay and also get photos, money order etc) to prepare the documents and this statement. I had to post the application either late today or early morning tomorrow so that the post reaches the Department before my visa expires on Friday, the next day being Saturday when my visa expires. I will provide an updated statement within 4 weeks of the application being acknowledged.
When I was going to school around the age of [age] to [age] I had a close friend. We spent time playing together and I was sort of infatuated with him and a relationship began between us. His name is [Mr B] and we had continuous homosexual relationship for a while.
I used to go to his house every week and used to have sex at his place. But sometimes his parents were present and we were not free to do what we wanted. One day in the school and after the school was over we were having sex and one of the boys saw us and reported us to the Principal. The Principal punished both of us.
After that for a while I avoided any sexual activity. Since being found out the children started calling me "napunsakaya" meaning "homosexual guy"
However soon I was tempted again and started getting into sex again.
Because we didn't get much time at his house we could not avoid in sexual activity after the school and the Principal caught us himself one day. He suspect they asked me to leave immediately threatening that if I didn't they will report me to the police for engaging in evil activity.
I fortunately got the job and I left for Brisbane to work for [Employer 1].
While [working] I became friendly with a [friend] called [name] and started having relationship with him and told him what happened to me in Sri Lanka. From him I came to know that homosexuality is legal in Australia.
But after two months and I had a medical problem and they sent me back to Sri Lanka.
I then went and stayed with a friend [with] whom I had a relationship in the past. However when I visited my parents I came to know that without my knowledge my mother has arranged a girl for me to get married. My mum told me that she will kill herself if I didn't get married to that girl. I could not tolerate my parents' pressure and stopped visiting them.
In the meantime the neighbour who is a nasty person has been watching us. He had told about our relationship to the owner of the house the owner and his brother came screaming at us saying we are engaging in shameful activities. They beat both of us and threw our things on the road and we virtually had to run away from there.
I then pleaded with an aunty of mine to allow me to stay for a few months and she gave me a warning to stop the homosexual activity if I want to stay here otherwise she promised to put me out. I abided by her condition and in the mean time I was asked to come back by [Employer 1] and I left for [Sydney].
Often I can't sleep and see frightening dreams. In my dreams I see my body hanging from a tree. So many things happened to me and they hurt deeply. I endured so much pain and hurt from the people. Because of those suffering I don't want to go back to Sri Lanka.
I can't live in Sri Lanka because of the horrific experience I have encountered. When I think of the things that happened to me I just want to kill myself.
I want to stay in Australia so that I can live away from of persecution and away from the Sri Lankan society that hates homosexual people like me.
Independent information
The DFAT Country Information Report – Sri Lanka, 2 May 2024 includes as follows (underlining added):
Sexual Orientation and Gender Identity
3.165    Same-sex intercourse is illegal, even when consensual. The constitution does not protect freedom of sexual orientation, and no laws exist to protect discrimination on the basis of sexual orientation, gender identity or expression.
3.166    Under the Penal Code (1885), it is a criminal offence to engage in ‘carnal intercourse against the order of nature’ (section 365) and ‘acts of gross indecency with another person’ (section 365A). These provisions are commonly understood to apply to sexual acts between same-sex persons and can attract sentences of up to 10 years’ imprisonment. Section 399 (‘cheating by impersonation’) and the Vagrants Ordinance (1841), which empowers the police to detain people considered to be loitering in public, have also been known to be used against members of the lesbian, gay, bisexual, transgender, queer, intersex or asexual (LGBTQIA+) community. Today, these laws are generally not enforced in practice.
3.167    Equal Ground, a local NGO, estimates that up to 12 per cent of the population identified as LGBTQIA+ in 2021. The survey found the highest percentage of LGBTQIA+ people, relative to population, live in the North Western and North Central provinces. The Western Province (which includes Colombo) has the highest overall number of LGBTQIA+ people in Sri Lanka.
3.168    There have been recent positive developments with respect to the LGBTQIA+ community. A bill to decriminalise same-sex relations was introduced in August 2022 and gazetted for parliamentary consideration in March 2023. The Supreme Court confirmed the bill’s constitutionality in May 2023. President Wickremesinghe says his government will not oppose the bill and, in the meantime, committed not to enforce Penal Code provisions relating to consensual same-sex intercourse. A national policy on gender equality and women’s empowerment, launched in March 2023, includes progressive references to the transgender community and diverse gender identities. In 2022, Sri Lanka Police appointed a dedicated Deputy Inspector General to work toward more sensitive interactions with, and policing of, the LGBTQIA+ community. As part of this process, Sri Lanka Police issued non-binding guidelines to police stations on non-discriminatory policing of the transgender community. In August 2021, the Sri Lanka College of Psychiatrists, the main medical body on mental health and psychiatry, declared that it did not consider homosexuality a mental illness and called for its decriminalisation.
3.169    In-country sources reported that community attitudes toward same-sex relations were slowly shifting in a progressive manner, particularly in Colombo and other major urban centres. Educated and urban Sri Lankans are generally more tolerant, and people who fit this profile and move within upper and middle-income circles can be more open about their sexuality. In-country sources told DFAT they could speak more openly today about LGBTQIA+ issues and had greater freedom to organise LGBTQIA+ events. In-country sources reported the level of risk faced by the LGBTQIA+ community differed from place-to-place, with risks perceived to be lowest in major urban centres, which have more active communities and support networks. Colombo is considered the most liberal and progressive, and members of the LGBTQIA+ community are known to relocate there. The LGBTQIA+ community in Colombo holds annual Pride activities (‘Colombo Pride’). Pride marches were held in Colombo for the first time in 2022 and again in June 2023. Pride marches were also held in Jaffna in 2022 and 2023. In-country sources said there was a growing LGBTQIA+ community in the east, and people were more likely to be open about their sexuality than 10 years ago, although less so compared to the north. Nevertheless, overall attitudes to the LGBTQIA+ community remain hostile, particularly in rural areas and among Muslims.
3.170    In-country sources told DFAT that, while it was rarely enforced, police used the threat of arrest under the law to harass members of the LGBTQIA+ community, including to demand money or sexual favours. In Jaffna, same-sex couples holding hands in public can be harassed in this way. Incidents of harassment against members of the LGBTQIA+ community largely go unreported. Victims are apprehensive to file complaints owing to concerns about their safety and a reluctance to bring attention to their sexual orientation. Of 235 human rights violations documented by Bridge to Equality, an NGO, against the LGBTQIA+ community between August 2021 and March 2023, 160 were not reported to the police. Most of the alleged violations (96) involved the police themselves.
3.171    According to in-country sources, members of the LGBTQIA+ community faced threats, physical and/or verbal abuse from family members, and may be forced into heterosexual marriage. In-country sources told DFAT that members of the LGBTQIA+ community concealed their sexual identity or left home in order to avoid family harassment and abuse. In a first-of-its-kind ruling, in August 2022, a Colombo court granted a lesbian woman an interim protection order against her parents, who had subjected her to abuse because of her sexual orientation. ‘Conversion therapy’ is permitted in Sri Lanka, and some families are known to forcibly seek curative treatment for LGBTQIA+ family members at dedicated profit-making centres, or through witchcraft.
3.172    In-country sources reported that transgender people and openly gay and lesbian people experienced discrimination and bullying in the workplace, education and healthcare. Ten per cent of respondents to Equal Ground’s 2021 survey reported being refused employment due to their sexual orientation and gender identity, with 12 per cent reporting they were forced out of work, education or their homes. The survey data indicated workplace discrimination was less prevalent in the private sector. Six per cent of respondents reported being refused medical treatment. Of the 235 human rights violations documented by Bridge to Equality against the LGBTQIA+ community between August 2021 and March 2023, 64 involved health workers (the second largest perpetrators, behind the police). Bridge to Equality reported in its study that members of the LGBTQIA+ community experienced physical, sexual and verbal harassment by medical officers and other hospital staff, including forced anal and vaginal examinations and homophobic slurs, during its reporting period. According to Sri Lanka’s National Gender Equality and Women’s Empowerment Policy (2023-2033, adopted in March 2023), members of the LGBTQIA+ community often avoid or delay accessing healthcare, receive inappropriate or inferior care compared to heterosexual people, and may not be treated with confidentiality in healthcare settings. As a result, many members of the LGBTQIA+ community try, where possible, to conceal their sexual orientation (trans men and trans women can be less able to do so). In-country sources reported that gay and lesbian Tamils were generally not open about their sexuality, due to fears of family ostracisation and societal discrimination.
3.173    Insofar as they are more visible, the risks faced by transgender people, particularly trans women, are more acute. Of the 235 human rights violations reported by Bridge to Equality between August 2021 and March 2023, 87 involved trans women. According to in-country sources, it was common for trans women to be beaten by family members or experience physical attacks, verbal abuse and sexual violence from members of the public. Such risks were reportedly more pronounced in Jaffna and Batticaloa, and slightly less so in Colombo. Discrimination, violence and bullying of transgender children is reportedly common in schools, and many do not complete their studies. Employers can be reluctant to hire transgender people, and DFAT is aware of accounts of transgender people being dismissed from their jobs because of their gender identity. While it is broadly possible for transgender people to access healthcare, they often experience harassment and judgmental comments by medical personnel. The Ministry of Health provides specialist psychiatric services to the transgender community.
3.174    In 2016, the Ministry of Health established a Gender Recognition Certificate allowing people aged 18 or above to change their legal gender and amend government-issued identity documents, including NICs. The process for changing legal gender is reportedly onerous: according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, individuals seeking a Gender Recognition Certificate must undergo a psychiatric evaluation by a medical professional, receive a diagnosis of ‘trans-sexualism’ based on the International Classification of Disease, and undergo hormone and surgical treatment. In-country sources told DFAT that hormone treatment and sex reassignment surgery services were scarce and expensive. They reported that parental consent was required by hospitals for sex reassignment surgery even where the patient was an adult, which created barriers to access. Many people reportedly went to India for surgery. Although post-operational care was available in Sri Lanka, it was inadequate. In June 2023, in-country sources reported that injections required by trans men were unavailable.
3.175    In-country sources told DFAT that lesbian and bisexual women, particularly in rural areas, faced added difficulty being open about their sexuality due to traditional familial expectations and values. In-country sources told DFAT that being a woman in Sri Lanka – as a patriarchal society – was challenging in itself, and the challenge of being a lesbian was greater still. Lesbian women are reportedly pressured by their families into heterosexual marriage and, like most women in Sri Lanka, face harassment in public, including on public transport.
3.176    While the LGBTQIA+ community has some support mechanisms, these are limited overall and are concentrated in urban areas. A small number of local NGOs support LGBTQIA+ rights, through advocacy or provision of services. The most prominent, Equal Ground, based in Colombo, provides legal aid and mental health counselling to members of the LGBTQIA+ community. It also operates a helpline, available in Sinhala, Tamil and English, including separate lines for lesbian women and transgender people. In 2021, Equal Ground was active in 18 of Sri Lanka’s 25 districts, and more than 50 towns and villages across the country. There is one LGBTQIA+ shelter in the country (in Colombo). Women’s shelters do not accept trans women.
3.177    DFAT assesses that openly gay and lesbian people face a moderate risk of official harassment and a moderate risk of societal discrimination, including a moderate risk of societal violence. DFAT assesses that the level and frequency of harassment and discrimination can differ depending on the socioeconomic status, religion and geographic location of the individual. DFAT assesses that transgender people – trans women or trans men – face a higher level of official harassment and societal discrimination than gay men and lesbian women, and a moderate risk of societal violence. While state protection mechanisms exist for the LGBTQIA+ community, DFAT assesses they are not generally accessible, equitable, effective or protective in practice.[1]
[1] DFAT Country Information Report – Sri Lanka, 2 May 2024, pp.49-51
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
The Tribunal in the hearing questioned the applicant extensively as to his claimed sexuality and its development, practice and problems faced in both Sri Lanka and Australia.
In the interview with the delegate, the applicant had given detailed evidence as to the difficulties faced as a result of his sexuality, apart from what is indicated in the written claims, extracted. In particular, the applicant had indicated being in a relationship with a person called [Mr C] while working at [a workplace] from 2004 until 2006. In the interview the applicant had indicated that he and [Mr C] had returned to [Mr C]’s home one weekend whereby their sexual activity was discovered by the brother of [Mr C]. This resulted in the brother attacking the applicant with an iron rod causing significant injuries to his arm and face. This resulted in the applicant needing to be hospitalised for three months to deal with the injuries.
In the hearing the applicant provided evidence of the relationship, the attack and hospitalisation consistent with details provided in the interview. The applicant gave the evidence of the attack and treatment with detail and consistency with prior evidence which persuaded the Tribunal that the applicant was recounting an event that actually happened.
The applicant also gave evidence in the hearing with detail and consistency with written claims as to his relationship in high school with [Mr B] which was first discovered by other students and then later by the headmaster. The Tribunal is persuaded both in terms of the detail of the applicant’s evidence in the interview and its consistency with the detail provided in the hearing that the applicant was providing true evidence of the relationship and its discovery by students and then the principal.
The applicant in the hearing also gave consistent evidence of living in Sri Lanka when he returned there after his first visit to Australia with a person he had previously been in a relationship with resulting in an attack by the brother of this individual.
The applicant was also consistent in the hearing with written details of a relationship with an individual formed [while] he was working.
The applicant in the hearing gave evidence in terms of the practice of his sexuality while in Australia. The applicant indicated that full expression of his sexuality has been limited as a result of language difficulties and, significantly, a workplace injury that occurred in 2018. The applicant indicated that he had had for about 10 months in Australia a relationship with a Sri Lankan man who was bisexual who he met at a party. The applicant indicated that he has sought in Australia to connect at some point with gay individuals on a social media dating app but this has not been successful due to his language difficulties. The applicant reiterated the problems caused by his back injury. He indicated that he watches gay pornography as a sexual release.
Based on all the evidence including the detail and consistency provided in the hearing, the Tribunal is readily persuaded as to the applicant’s claimed sexuality and difficulties faced as a result in Sri Lanka. The Tribunal is satisfied that the applicant’s sexuality in Sri Lanka was discovered during high school resulting in punishment and stigma both from the school, his parents and society. The Tribunal is satisfied that there was one occasion where the applicant was quite severely injured requiring hospitalisation by a brother of one of his partners.
The Tribunal is satisfied that in Australia the applicant has been limited in his ability to form gay connections and relationships because of language and health issues. The Tribunal, however, is persuaded that the applicant has had one same-sex relationship in Australia for a period and accesses gay pornography.
The Tribunal is satisfied that on return to Sri Lanka the applicant would wish to engage in male sexual connections and relationships.
The DFAT information extracted in this decision indicates a moderate risk to homosexuals in Sri Lanka of official harassment and societal discrimination, including a moderate risk of societal violence. The DFAT independent information is consistent with other independent evidence accessed by the Tribunal.
The Tribunal is satisfied that if the applicant were to act as he would wish in Sri Lanka in terms of his sexuality that he faces a real chance of serious harm as a result of this. The Tribunal considers that the risk to the applicant is well illustrated by the applicant’s previous serious physical attack from the brother of a person with whom he was in a relationship.
The Tribunal considers that the serious harm the applicant is at real risk of is physical harm combined with other significant non-physical mistreatment and discrimination.
The Tribunal considers that the essential and significant reason for the harm that the applicant has a real chance of facing is a product of him belonging to a particular social group of gay men.
The Tribunal considers that the persecution that the applicant is at risk of is systematic and discriminatory. Given that the risk is a result of societal attitudes in Sri Lanka, the risk of harm relates to all areas of Sri Lanka.
The Tribunal is satisfied the applicant does not have the right to enter and reside in any third country.
Given these findings, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the reasons set out in s 5J(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
David McCulloch
Member

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

[2024] AATA 4208

9 September 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

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Jurisdiction