2219212 (Refugee)

2219212 (Refugee) [2024] AATA 4174 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ramazan Altintas
CASE NUMBER:  2219212
COUNTRY OF REFERENCE:                   Uzbekistan
MEMBER:Denis Dragovic
DATE:9 October 2024
PLACE OF DECISION:  Melbourne
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 October 2024 at 4:55pm
CATCHWORDS
REFUGEE – protection visa – Uzbekistan – gender and membership of particular social group – homosexual woman – relationships and activities – social attitudes and discrimination at university – avoidance of arranged or forced marriage – sexual assault and claim that perpetrator will want to marry her – social relationships with foreign agency workers – falsely declared brother as husband for him to travel as dependant on student visa – possibility of criminal charges for bogus document and bribe – inconsistent evidence of immediate and extended family’s attitudes and levels of support – country information – current government’s closer relationship with West – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5K(1)(a), 5J(1)(a), (4)(a), 36(2)(a), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 November 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Uzbekistan. She applied for the visa on 6 June 2017.
The applicant appeared before the Tribunal on 16 August 2024 and 25 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbek and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal 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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Findings of fact
The applicant is a [Age]-year-old Uzbek woman from [City 1], Uzbekistan. Her parents continue to live in Uzbekistan, splitting their time between [City 1] and Tashkent where they have homes. She has a brother who is studying in [Country 1].
The applicant completed her studies in Tashkent as the family moved there when she was entering university.
The applicant was raised as a Sunni Muslim but doesn’t practice her faith. In her 28 August post-hearing written statement, she wrote that she is not a Muslim.
The applicant claimed that she fears returning to Uzbekistan for fear of being forced to marry. She said that her wider family were preparing for her to marry without her consent around the time she was graduating from university.
At the hearing she said that she is a lesbian. She said that she had never been attracted to men as other women in her family. She said that normally, girls are into men, but if you are not into men others won’t accept it.
She claimed to have had a realisation of her sexuality when she was 13-14 years old. She described it as starting when she’d stay with her female cousins. One of her cousin’s best friends, [Ms A], who she believes to be lesbian, would visit her cousin quite often and the applicant loved how [Ms A] showed her attention. While others saw it as a big sister love, the applicant felt that it was different. She felt attached to her and missed her.
At high school, when other girls would talk about men, and their desires, she said that she would have a different interest, being attracted to a girls’ eyes or lips. She claimed never felt attracted to men like other women at high school. She said that she felt different. She didn’t talk like other girls talk about and act with men. She questioned her desires and orientation.
The applicant claimed that she was sexually abused when she was 16, though she emphasised that she is not connecting her sexual orientation to the abuse. At the hearing she added that she is not afraid of that person, nor does she want to act against that person. She said that she fell pregnant to that person and had a difficult abortion but managed to keep it a secret from everyone.
The applicant described the first women she had genuine feelings for. It was when she came to Australia and was living in [City 2] with a host family. The other woman was her housemate and they remained in a relationship for several months. This woman moved out of the house in March 2014 and the applicant moved out with her brother shortly afterwards. She said that she hasn’t met someone like her since, although she has had a few dates with other girls. Photos were provided that appear to be the applicant with this woman including photos of the applicant being physically amorous with this woman.
Although she had genuine feelings for this woman, they didn’t have a commitment as a couple. She loved her and believed it to be mutual, but this other woman also liked men. The applicant said that even when this other woman would fly through [City 2] to meet her when she was living in [City 2], the other woman would talk about the men she would be with, and this wasn’t good for the applicant. The applicant claimed that her brother, who resides in Australia, had met this woman but knew her as a friend and not as her partner.
The applicant said that she meets other girls in clubs. She said that she normally goes to [Venue 1], where she participates in drag bingo which costs her $10 and while there, she meets other like-minded people. She said that she spends money on cocktails and pizza.
She said that she enjoys the show and the party. She said that if she has a feeling for a woman, they talk and communicate, and then if the feeling is good, she will invite them to her place or try to find another time to meet.
She described [Venue 1] as a nightclub and bar. She said that she spends money there and that entry is free if you come before 10.30pm. She said that she usually goes early as the drag show starts earlier. She estimated that she has gone on average once a month since November 2023 when she moved to [City 3].
The applicant also mentioned [Venue 2] in [Suburb] which she described as a gay club, though she prefers [Venue 1] as it is closer, and she enjoys the vibe.
I asked the applicant to provide copies of her credit card statements. The statements provided show only one expense in either of [Venue 1 or 2]. The expense is from 22 July 2024 for $25. She confirmed that none of her bank records record her as having made any other transaction in these gay clubs.
I also noted that she had said at the hearing that she would buy cocktails and pizza and there is a cost to drag bingo and questioned her claim conveyed in her written response to the request for bank statements that she paid for it all in cash. She responded that she normally used cash as it was easier than inputting credit card details into the phone when using the QR code on a table.
The applicant also claimed in her written submission that she attends drag bingo at [Venue 2], but she was unable to provide any bank charges on her statements to support this claim.
She said at the second hearing that she had also followed up with [Bank] to obtain her statements from her time in [City 2] as she thought there may be some expenditure for [Venue 3], a gay bar that she visited while living there but she was unable to find any transactions showing [Venue 3].
Prior to moving to [City 3], the applicant was living in [City 2] where she claimed to have had a lot of friends as she worked in different places and had studied there. She would socialise on the gay and queer scene but not as often because she was living with her brother.
The applicant claimed to use [dating apps] three to four years ago to meet people. I asked the applicant to provide screenshots of her account. The applicant responded in writing that ‘unfortunately, I could not recover any of those accounts. I mainly used [a website] (not mobile application) in between 2014-2016 after [the other woman] went back, to overcome my emotional attachment.’ She claimed to have checked with the support team if they could help her recover her account.
I asked at the second hearing how she communicated with the support team and to provide evidence of this. She explained that she had to open a new account to access support and then asked them to see if they can help find her previous accounts. She said that they checked with her Apple account, but nothing came up. At the second hearing the applicant shared her screen while logged into [Website]. She could not find evidence to support her claim that she had recently opened it. But in going through her account, I note that it was a detailed profile that included considerable information about her sexual preferences. It did not appear cursory.
The applicant said that she also tried to log into the email accounts she had used when she came to Australia but couldn’t as they reverted back to the phone number she had put as a backup, which was an Uzbek number. She claims that they couldn’t find any account linked to her current email and thought that she must have registered with her old email address. She said that she couldn’t log in to those accounts. She added that she could not find proof of any subscriptions in her Apple payments history.
She said that she doesn’t share much with her brother who resides in Australia about her life. She wrote that she would hide the dating apps accounts from him while they were living together in [City 2].
The applicant claimed to have participated in the [Event]. I asked if she had any evidence including for example photos. The applicant provided a photo of her in what appears to be the claimed march.
The applicant said that she is not actively announcing to others that she is gay and that she doesn’t post much on any social media. She said that she hasn’t used her [Social media] for a long time.
Initially the applicant said at the first hearing that no one knew of her sexuality. Then she indicated that her mother knew. I place no weight on this apparent discrepancy as revealing such personal issues can understandably be complex. I asked at the second hearing for her to clarify who knew of her sexuality. She explained that her mother and maternal aunt knew. But her mother would take it as a joke. She assumed the applicant was looking for excuses to avoid marriage. On the few occasions when she took it seriously her mother appeared concerned and was worried that the aunt may tell others. The applicant does not believe that her aunt has told others.
The applicant provided convincing evidence at both hearings regarding her sexuality. She recalled the evidence with clarity and consistency. She was able to answer questions in a manner that conveyed a sense having deeply thought and reflected on the issues through the years. This weighs in favour of her claims. But the applicant’s inability to produce evidence of more than one credit card expenditure in any of the clubs she claims that she attended, nor evidence of her online dating, is concerning. The applicant’s response was that she paid cash. This is possible but considering that the applicant has claimed to attend a number of venues across a number of years it is concerning. With regards to [Website], I had asked, and the applicant consented to share her screen of her profile. I had sought this to find supporting evidence of her claim that she had created a profile to contact admin support so as to enquire about her previous profile. In viewing the profile, it wasn’t sparse. It didn’t appear to be a cursory profile. While the effort didn’t show proof that the applicant had only recently established the profile as claimed, it did lend weight to her claims for the reason of the profile being comprehensive. I am unsure as to why she would make a comprehensive profile simply for the purpose of communicating with the site’s admin, but it lends credibility to her claims considering that she had not provided it as evidence of her own accord. Overall, when considering the applicant’s claims, I accept that her sexual orientation is a preference towards women and as such that she is lesbian.
The applicant’s false marriage
The applicant described concocting a marriage on paper to her brother to obtain the necessary paperwork for him to migrate with her as a dependent on her visa. She said that not many people know that she married her brother on paper.
The applicant’s visa was granted on 8 October 2013, she arrived in Australia [in] October 2013. The applicant’s brother arrived in Australia [in] April 2014. The marriage certificate provided by the applicant to the Department is dated [Date]. She initially believed that she would be able to bring a family member along as a dependent but only later realised that the option only meant a husband, wife, or child and not a sibling. She claimed that culturally she couldn’t travel and not bring a male.
I asked the applicant why she had obtained a marriage with her brother prior to her visa being granted if she was claiming that she only realised that it was not possible for her to bring someone after the visa was granted. She clarified that she realised that she would be unable to bring her family members when she began the visa application process once she had her certificate of enrolment in hand.
Noting that she had lived alone for six months and had travelled alone to Australia, I asked what the extended family’s reaction was like. She said that her mother bore the brunt of the abuse. She claimed that her mother was insulted and humiliated. Her father, according to the applicant, was more immune to such attacks. She said that because they are from a Muslim family, other family members suggested that the mother is sinful and will go to hell. Instead of arranging for the daughter’s marriage, she supported her to go overseas. They would accuse the mother of bearing responsibility before God. They would blame her for facilitating a way for the applicant to leave Uzbekistan.
The applicant acknowledged that her direct family were supportive including continuing to provide financial support. She said that the family supported her continuing with her studies, but at the same time they wanted her to marry. She noted how her parents found a contact in Australia who would call the applicant with men as possible husbands.
She said that her father’s family are very strict towards women describing their views as women being only for marriage and having children. She gave the example of not being allowed to live alone in Tashkent.
She said that her brother saw what was happening and offered to go with her, so they went to the registry office where they had a contact, a bureaucrat named, [Ms B]. This woman was able to process their fake marriage in days whereas, they claimed, a marriage would otherwise take time and include an application and the collection of necessary papers, which would take at least a month or more.
But in 2017 the applicant’s mother was at a wedding and received an urgent call from [Ms B] to meet with her. The applicant narrated how [Ms B] was afraid that her mother had ‘legalised’ the documents. [Ms B] made a soft threat and demanded that no one should mention her name. She also suggested that it was better that the mother’s children don’t come back to Uzbekistan.
The applicant believes that the only reason [Ms B] approached her mother and made the threat was because it was being investigated by the authorities. She believes this as there is no benefit for [Ms B] to contrive such a conversation. The applicant believes that an investigation will progress were she to return to Uzbekistan.
The applicant provided an Uzbek lawyer’s statement pertaining to the marriage and a conclusion by the lawyer that the case will be investigated upon her return. The statement explains that there are two different profiles on the same biometric, one showing that she is the sister of her brother and another that she is married to her brother.

The applicant also believes that through any investigation into her documents her application for a protection visa would be uncovered.
The applicant believes that [Ms B] has connections as she was able to arrange for the paperwork to be completed and that those connections would protect [Ms B] and potentially lead to the applicant taking the blame.
The applicant claimed that in March and May 2017 Uzbek authorities started talking to her mother about her children including with the police visiting their house. She confirmed that nothing happened to her mother. She said that her mother didn’t tell anyone about what happened, and she doesn’t believe that [Ms B] would tell anyone and so she is unsure how the police became aware of it.
She said that the last time the authorities followed up about the issue was in February of this year. I noted that she was abroad at that time and as such there would have been an investigation and as nothing has happened it would indicate that there is nothing happening. She said that they know that they have checked the marriages and births dept as she is there, but the applicant confirmed that nothing has progressed.
I suggested that as nothing further has happened it is possible that [Ms B] made the problem go away. She acknowledged that it is possible. She believes that it is the reason why [Ms B] told her mother that it is better for your children to stay away and not come back but were she to return then it would all be revealed.
The applicant’s brother was also involved in obtaining a fake birth certificate. This was required by the Australian embassy in Moscow for their parents to come to the applicant’s graduation ceremony. She said that the consultant in Tashkent recommended to get a fake birth certificate so as to avoid the obvious evidence of both ‘married’ couple’s parents having the same names and details. The applicant’s mother arranged for that through [Ms B].
The applicant’s mother has not been arrested, detained or charged.
The above-mentioned Tashkent lawyer also provided an assessment of the circumstances she would encounter upon return to Uzbekistan. The letter states that the applicant has violated the following sections of the Criminal Code of Uzbekistan:
a.Article 228: Production, forgery of documents, stamps, seals, letter heads, their sale or use
b.Article 211: Giving a bribe
The letter states that violation of Article 228 is ‘punishable by a fine of fifty to one hundred basic calculation values or mandatory public work for up to three hundred and sixty hours or correctional labor for up to three years.’ Furthermore, it states that the ‘use of deliberately forged document’ is punishable by a fine of 25 to 50 basic calculation values or community service of up to 300 hours or correctional labor of up to two years or restriction of liberty of up to two years of imprisonment.
The letter states that violation of Article 211 is ‘punishable by a fine of fifty to one hundred basic calculation values or restriction of liberty from two to five years or imprisonment for up to five years.’
The letter states that:
these facts will be investigated by law enforcement agencies, all actions will be given an objective legal assessment and the perpetrators will be brough to criminal responsibility. Since documents that have been notarized and legalized fall into a single notarial database of official documents issued in the name of a particular person, if the biometric data match, the reason for the match is checked. It is highly likely that these illegal actions will be detected when crossing the border, since at the moment two absolutely identical people are registered in the biometric database, but with different information specific in the passport, as well as during further verification in the unified database, the fact of marriage with a close relative will be revealed. It is highly likely that all persons involved in this violation of the law will be identified during the investigative actions.
I accept the lawyer’s letter on its face, as an assessment of the possible repercussions she will face upon return to Uzbekistan.
Forced marriage
The applicant’s parents are claimed to have known that she didn’t want to be forced into a marriage, but she said that her father’s family are powerful, and they were pushing her to be married.
She described the pressure of being married off as including neighbours and distant relatives looking at you, and particularly if you are good looking and from a good family, they will always try to find someone for you. She described it as being of good intent, as they believe that when they help someone to marry, they are doing a good deed.
She said that even university lecturers were helping her to find a man to marry.
When she graduated (June 2013 according to her protection visa application) the extended family said to her that she had no more excuses. They identified a distant relative and took her to meet him. The applicant told them that she doesn’t like him and once ran away from home.
I asked if she was now too old to be forced to marry as she is [Age]. She said that she will face trouble with the extended family, and they will try even harder to marry her off quickly. She said that in Uzbekistan they can force her into a room, marry her to an older man or to force her to become a second wife.
Considering that the applicant was able to travel to Australia, on her own, and live in Australia for several months, on her own, I find that the family is quite liberal and supportive of the applicant’s own choices. As the ‘father’s family’ were unable to stop her from travel, unable to force her family to pressure her to return and even earlier, unable to arrange for her to marry and remain in Uzbekistan, I find that now, when she is [Age] years old the father’s family will not be able to pressure her into any forced marriage.
Gender claims
The applicant claimed that as a woman she was discriminated against while living in Uzbekistan. She described this as including at university when she didn’t dress or behave like other girls. She would wear jeans and a simple shirt and would sometimes be derogatively called trans. She said that other girls in her university would not be friends with her. She would be bullied and hear comments about her clothes.
She described additional discrimination as arising from her questioning Islam while studying philosophy at university and that this led to some students and lecturers acting against her in the form of blocking her from joining groups and once being called ‘cursed’ by a faculty dean. She claims that her articles were not published, and she was not given a prize because of the discrimination against her. She claimed that one has to be ‘moderate’ and ‘obedient’ when it comes to religion.
The applicant also recalled a time in 2007 when she organised a protest for a perceived injustice that allowed boys to receive university entrance marks that were inflated relative to the girls. She claimed that she coordinated the protest in front of the [University] and the police then came but she was not charged or detained.
The applicant claimed that she experienced gender discrimination during her exams when the boys would be handed the answers to exam questions.
The applicant claimed that her mother was warned following her protest, her behaviour at university and her engagement with members of the [Country 1 Agency].
Regarding the [Agency], she explained that she was fond of speaking to foreigners to improve her English. As one of their neighbours was [an Agency] member, she would meet them often. The family would even invite them over. She explained that her mother received a warning from the school and authorities about her frequent meetings with the [Agency] members. They were called to a youth centre and questioned. She reflected in her August submission that this could have been the reason why she was questioned on the flight out of Uzbekistan.
She also said that among the wider family she would be expected to fulfil the basic expectations of a woman such as cleaning. She recalls telling her grandmother that she was not a slave and not to expect her to do that and as a result her grandmother tried to punish her.
With regards to the claims that revolve around gender discrimination, I put to the applicant information from the World Bank’s Country Gender Assessment Report:
The CGA highlights Uzbekistan's significant progress on gender equality since 2017. Notable advancements include ensuring equal pay and removing job restrictions for women in the Labor Code adopted in 2022. Additionally, amendments introduced to the Criminal Code in 2023 established criminal penalties for domestic violence.
Consequently, the Women, Business, and the Law Index, annually produced by the World Bank, recognized Uzbekistan as one of the top five improvers in gender equality in 2024.[1]
[1] >
She responded that what’s reported on the books about improvements is not necessarily what happens. She recalled being forced to memorise how good the quality of life was and how progressive equality is when she was a student to convey at official events. She said that a woman’s life is different in Uzbekistan as women are controlled and expected to behave in a traditional way. I noted that she managed at the end to accomplish much of what she had aspired including to study abroad. She said that she was able to achieve a lot as a female but that it was not accomplished happily.
Having sought asylum
The applicant claims that having sought asylum she will be harmed by the authorities. I asked how anyone will know that she sought asylum. She believes that they will check but I noted that there is no evidence available to Uzbek authorities that she had sought protection. She acknowledged this. She said that she knew of some relatives who moved to [Country 1] but when they returned their visa history was sought by the Uzbek authorities. She acknowledged that this was from a long time ago.
At the first hearing we discussed how the current regime which changed in 2016 has had a closer relationship with the West[2] and has undertaken efforts in response to international criticisms. With regards to these changes under the new regime the applicant claimed that the previous Karimov regime also showed the same outward signs of change but behind the scenes it was all staged. She gave an example of how a visit to her university included two weeks of practicing for a delegation of International Universities including questions to ask and how to answer questions.
[2] and >
Noting that there is evidence that the new government is trying to have better relations with the West, I asked whether there is any evidence that the government continues to undertake this sort of behaviour for people coming from the West. She said that people who have lived abroad a long time have to find fixers to take them through immigration at the airport. She believes these people facilitate the process as returnees are afraid of being detained. She said that the new President was portraying a level of acceptance of those living under political asylum abroad, but she believes that this is a trap to bring them home.
The applicant provided country information about failed Uzbek asylum seekers in Russia returning and being arrested. I noted that it was occurring under the previous regime as the events were from 2016. I noted that there hasn’t been anything since then. She said that she believes that there are similar things happening and that the current president is applying the same procedures and rules, though, she hasn’t read about any updates recently.
A previous sexual assault
The applicant wrote in her August 2024 submission that she fears that the man who had raped her when she was 16 years old would tell her parents what happened and would now want to marry her. She wrote that he is not married and has returned from [Country 2]. She wrote in a written submission following the first hearing, ‘This has been my real nightmare since I was 16. Not recently, but I had times I woke up crying in pain from the nightmare of being forced to marry him.’ I put to the applicant at the second hearing that this is incongruent to the claims she had made at the first hearing, namely when she explicitly said that she does not fear him. I noted that an opportunity was provided for her to give evidence about the situation then, but she clearly explained that the past incident was not a present fear. She said that during the first hearing she tried to explain that he didn’t threaten her or contact her. She said that it is not a fear of hers that he would harm her if he came close to her. But only that after the hearing she thought about her past fears. She feared about the truth coming out and being forced to marry him. She explained that he is Muslim, he is not married, nor is she, hence she believes that he may see it as an opportunity. I suggested that he wouldn’t admit to having broken the law and violated her which she acknowledged adding that it may be perceived as the reason she fled and so others may blame him. I noted that he could easily just ask for her hand in marriage as she is [Age] years old and his marriage with her would help the family’s reputation. She acknowledged this and said that she was raising it as it had come to her after the hearing.
I accept that the applicant was previously sexually raped. Without further evidence, I find it speculative to presume that nearly twenty years later the same man will want to marry her and as such do not accept this presupposition.
Considerations
Lesbian
I have found that the applicant’s sexual orientation can be described as lesbian. As such, the following country information is relevant:
TGEU (Trans Europe and Central Asia), a trans-led nonprofit for the rights and wellbeing of trans people in Europe and Central Asia[3], finds:
·Between 2020-2022, researchers documented 297 cases of human rights violations based on sexual orientation and gender identity (SOGI) in Uzbekistan. Of these, 32% were cases of domestic violence by relatives against LGBT people because of their sexual orientation and/or gender identity. In 2023, 241 cases of SOGI-based LGBT rights violations were documented, with 92 involving violence by relatives.
·In Uzbekistan, lesbian women face forced marriages at a young age, rape and sexual abuse. Lesbian, bisexual women are subjected to so-called “corrective rape” primarily by close family members and law enforcement officials.
·Although the criminal code article “sodomy” refers to men, women can be prosecuted and discriminated against under the administrative article on morality and ethics. In 2022, two female models kissed during a product advert. They were forced to apologise in public on camera and say they were “normal girls”. They were tried under the article “petty hooliganism” and fined 900,000 Uzbek sums each (about 80 euros).
·Queer people in Uzbekistan see a new disturbing trend coming from Russia in the recent months of 2024. Thus, Russian psychiatrists have started to recommend ‘sexual orientation treatment’ in Uzbek social networks. Russian doctors advertising sexual orientation treatment has existed before, community members say, but then it was advertised as a practice in Russia, now they are offering services specifically for Uzbek residents and on their territory. Queer people worry that conversion practices by Russian therapists will become the norm in Uzbekistan’s already conservative and LGBTIphobic society.
[3] >
An article in Open Democracy notes, ‘Uzbekistan is one of the few remaining countries where sex between men is still criminalised, and can be punished by a three to five year prison sentence…criminalisation is widely used to blackmail and threaten people.’[4]
[4] >
The same article, though, notes that in Tashkent being gay can be lost in the crowd and ‘some people don’t hide their orientation’. In this article, a gay man is interviewed. He recalls:
All my close friends know that I’m gay. I started talking about it a long time ago, because I didn’t want to be some kind of person who I’m not. Although I feel that my sex life shouldn’t bother anyone. I once told everyone at work about it: colleagues asked what I thought about gays and I said: “Well, what can I think about gays when I’m one myself?” Most of them were fine about it…On the whole, it’s not that difficult to be gay in Tashkent. Of course, when there’s too much in the air about people being jailed, humiliated or beaten up, there’s a lot of fear around and you get worried. But on the whole I can’t say that I’m always afraid and live in fear of my life.[5]
[5] >
The narrator of his story explains that gay men don’t live together, there is no LGBT community, gay men can meet but have to use code names and hide their identities.
The same article was sent to the applicant with a specific reference to another narration of a lesbian who indicates that gay women can live in Tashkent free from harm and engage in gay relationships. The narrator of this story writes:
When I had a girlfriend, the worst thing that could happen people might point and shout “lesbian” at us, but we could survive that. No one was threatening to beat us up or even show any direct aggression.
From the point of view of safety, it’s also easier for a woman to be LGBT – society sees us as some kind of amusing creatures: “Look at them, walking hand in hand, the silly lesbians!”
I often think about leaving Uzbekistan, but not because of my sexual orientation and my views, but because life has really been hard in recent times. But I’m not thinking of going yet.
Importantly, the same narrator writes, ‘But this is mainly a question of luck – everything might be OK and no one pays attention to you, or it might be the opposite.’
In response to this article the applicant made the following points and referenced each with a hyperlink:
a.She referenced the illegality of homosexuality for men and how the UN High Commissioner for Human Rights urged the government to amend these provisions.
b.That there is a culture of violence arising from a patriarchal social structure.
c.Local officials have been instructed to strengthen family relationships and oppose various harmful influences, noting that the domestic violence laws have been strengthened but only in that context.
d.Domestic violence and violence against women lack legal protections.
e.Hiding one’s sexuality might help to avoid harm, but there is evidence that ‘staying in the closet also contributes to psychological and physical health conditions.’
f.She referenced a YouTube vlogger who spreads hatred against LGBT people.
The applicant provided a further statement that summarised her situation. The key aspects of her statement are:
a.She is a lesbian and that she wants to be free to express this and meet a woman and hopefully marry and have a child together.
b.She referenced the Open Democracy article and noted that some may live freely but her family and social context would not allow her to be one of them. On this point she emphasised that she is from a conservative family and of Uzbek ethnicity arguing that this makes her situation different. She noted how her uncle had ‘pinned a knife to my grandmother, his own mother, just for the reason that she was sitting in the front seat of her male colleague’s car.’ Though she acknowledges that this was a long time ago, ‘before, maybe I was born.’ She noted how her aunt was forced to marry her cousin. A female cousin was not allowed to continue her schooling after 7^th grade for the reason that she had ‘enough’ education. Another cousin was beaten so badly that she died in hospital. She also described how a cousin married someone against the wishes of her father and was subsequently effectively disowned despite being severely beaten by her husband.
c.The applicant provided further information about her experiences within her extended family including being beaten up for having her hair done up and wearing some makeup for a wedding as she was accused of looking like a prostitute; being slapped for looking straight into the eyes of her oldest uncle rather than looking down; and that she was encouraged to kill herself after coming home drunk,
d.She provided hyperlinks to other reports and articles as a response to the Open Democracy article I had provided. The references she provided indicate that lesbian women are forced into marriage by their families where they encounter marital rape and that the law against male homosexuality leads to a negative social view against all types of non-traditional relationships and sexualities. Another hyperlink referenced research where nearly 300 cases of human rights violations based on sexual orientation and gender identity were identified of which a third was violence perpetrated by a family member. Another described ‘corrective rape’ on lesbian women by a close family member or law enforcement official. The applicant noted that lesbians can be prosecuted under the law although only sodomy is criminalised, she gave an example of two women who kissed for a product advert and had to publicly apologise, they were tried under the ‘petty hooliganism’ law.

In considering the circumstances into which the applicant will be returning to, beginning with her family, I note that there is an apparent contradiction. On the one hand the applicant had provided at various stages evidence of her extended family having perspectives that align with strict patriarchal views of gendered roles. The consequences of straying outside of these boundaries in her family was being beaten badly and in at least one case dying. She noted that there no repercussions in that instance. I also note the additional examples given under other sections within this decision that refer to her wider family’s social views: [43], [45], and [62]. She also argued that although there have been recent changes to the domestic violence laws, these are not fundamental changes within society.
But on the other hand, the evidence before me is of a woman whose family moved to Tashkent to allow her to study, a family that supported her move to Australia including by discretely travelling to [Country 3] first so as not to raise suspicion and then having to facilitate the forging of documents to have her brother accompany her. It seems on the face of the evidence before me that she was given everything that she wanted and needed by her immediate family. The applicant distinguished the role of the wider family from her immediate family, which I accept to be highly relevant. A patriarchal society such as Uzbekistan is not one that limits the influence upon women to only the father but includes the authority of the male elders. As such when considering the evidence overall, I accept that the applicant’s wider family would not accept her being a lesbian. I find that whereas her mother may have some sympathy and dismiss it jokingly the male elders would not allow it. I find that they would find out by way of the applicant wanting to live her life as she chooses whereas the extended family wanting her to marry and/or explain why she is not marrying. I find that the extended family would act forcefully against her such that the harm she encounters would amount to serious harm. As such I find that the applicant faces a real chance of serious harm into the reasonably foreseeable future.
But I note that there is no evidence before me that the extended family is harming all lesbians. Nor are they anti-LGBTI campaigners or fundamentalist Islamists which may be indicative of a broader propensity towards acting against all members of a particular social group. The harm the applicant would face, is instead, for the personal reason of undermining the family’s honour by her defying the social norms that they adhere to and place considerable stock in.
To avoid doubt, I also find that the harm she faces is not for reasons of race, religion, nationality or political opinion. As such, the serious harm the applicant faces is not for one of the essential and significant reason (s 5J(4)(a)) listed in s 5J(1)(a) and as such I find that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
As introduced at [10] having found that Australia’s protection obligations are not triggered by s36(2)(a) the alternative consideration is known as Complementary Protection which requires the Tribunal to consider whether the applicant faces a real risk of significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Unlike s36(2)(a), there is no requirement for the harm the applicants face to be for one of the five identified essential and significant reasons discussed above. Instead, though, there is a need that the Tribunal is satisfied that there is a real risk that the applicant faces significant harm and that it is harm of the type identified in the above paragraph. Specifically, I am satisfied that the applicant will face torture, cruel or inhuman treatment and/or degrading treatment based on the same reasoning given above at [92]-[93].
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
In considering these possibilities, I find that it would not be reasonable for the applicant to relocate to another part of the country. While there is some country information that refers to some degree of freedom to live a life as a lesbian in Tashkent, this is not the case in rural areas. On the contrary, in the above referenced articles there are numerous mentions of rural areas being more socially conservative, for example, the above quoted narration of a lesbian’s life in Tashkent, she recalls:
Tashkent, in contrast to the rest of the country, is generally very privileged. Here you can try to explain, show and prove something to someone. In the rest of Uzbekistan, people have no time or resources to think about our lifestyle: people are too busy eating, drinking, working and having babies.[6]
[6] With regards to seeking protection from the state, the applicant narrated in her post hearing submission in response to the s424A letter that the situation in which a cousin was beaten such that she passed away in hospital from the injuries did not lead to prosecution and that instead her death was covered up as being the result of negligence by a nurse.
101. In considering whether the applicant could obtain protection from the state such that the risk is less than a real risk, while Uzbekistan has introduced protection orders and criminal offences related to domestic violence[7], these protections would not prevent the extended family from acting against her. I make this finding on the basis that as long as the cultural norm places considerable weight on honour then at some stage the loss of honour will outweigh the risks arising from the state potentially prosecuting a case against the perpetrator of harm. Noting the examples given by the applicant of her extended family’s experiences, I am satisfied that she does come from a sufficiently conservative family such that they would find a way to maximise the harm to her so as to regain their honour while minimising the risk. I find that acknowledging the risk they face, knowing the possible state response, will not sufficiently deter them from committing violence against the applicant such that she faces a real risk of significant harm. As such, I find that the applicant cannot obtain protection such that she will not face a real risk of significant harm.
[7] I am satisfied that the risk the applicant faces is not one faced by the population of the country generally for the reason that the family would specifically target her.
103. As such when considering the evidence before me, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
104. I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Uzbekistan such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
105. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

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 4174

9 October 2024

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