2219213 (Refugee) - [2024] ARTA 621

2219213 (Refugee) [2024] ARTA 621 (6 November 2024)
CORRIGENDUM
Respondent: Minister for Home Affairs
Tribunal Number: 2219213

Tribunal:Senior Member D Dragovic
Place:Melbourne
Date: 14 November 2024
Amendment: The following corrections are made to the decision:

The year on the signature block “6 November 2014” is to be replaced with 6 November 2024.

Senior Member D. Dragovic

Statement made on 14 November 2024 at 8:37 AM

DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2219213

Tribunal:Senior Member D Dragovic
Date:6 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Senior Member D Dragovic

Statement made on 6 November 2014 at 10.05am
CATCHWORDS
REFUGEE – protection visa – Uzbekistan – religion – Muslim – particular social group – returned asylum seekers – false identity documents – fear of detention – limits on religious expression – wearing the hijab – return visits to Uzbekistan – employment – unregistered child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Uzbekistan. They applied for the visas on 6 June 2017. The application was refused by the Minister’s delegate and appealed to then Administrative Appeals Tribunal.
The applicants appeared before the Tribunal on 16 August 2024, 2 October 2024, and 30 October 2024.
The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbek and English languages.
The applicants were represented in relation to the review. The applicant’s changed representatives after the second hearing but in both instances their 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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant (‘the applicant’) is [[an age]-year-old male Uzbek. He arrived in Australia on a dependent visa [in] April 2014. The second named applicant, who is married to the first named applicant, arrived separately in Australia [in] May 2016 as a dependent applicant on a [business] visa.
The second named applicant did not appear at the first hearing but did so at the second and third hearings.
The applicant came to Australia on a dependent visa as a husband of the person who was his sister. The applicant described how he came to access a marriage certificate showing a relationship with his sister.
This began when the applicant’s sister chose to travel to Australia to study but as a woman it was not deemed preferable culturally to live abroad on her own:
My sister wanted to study in Australia. In our culture, one family member must accompany my sister, otherwise my sister would be seen as an immoral person. My relatives and our community will harass my family if we sent her alone. They will talk bad about my sister and my family. We would be seen as a family who have infringed the Islamic teachings.
To enable her to pursue her dream, my sister and I went through a fake marriage. We went to the Register of Marriages where we got married and I entered Australia as her dependent. if I had not travelled to Australia, my parents would not have been left alone. My relatives and my community would talk bad about them and the community will shun us.
We then made another wrong. When my sister applied for my parents' visitor visa to attend her graduation, the Australian Embassy in Moscow requested for my birth certificate. We were afraid the Australian Embassy would find out the truth about my relationship with my sister. Therefore, to cover the first lie we committed another lie. We organised for my fake birth certificate to be issued by the Uzbekistan government.
The applicant claims that the Uzbek government knows of his and his sister’s fraud and that they are investigating their actions.
The applicant also claimed to fear harm from the woman in the bureaucracy who helped facilitate the marriage document. He explained that the family used a go between named [Official A]. He fears her as she was able to complete the documentation quickly which the applicant believes to indicate her widespread connections. The applicant said that what she produced are original documents but that the process, the details of which are unknown to him, was fraudulent. He said that she was able to go through the process in one day where it otherwise would take over a month, again showing the extent of her contacts.
I noted that the marriage certificate between the applicant and his sister was dated [in] September 2013, and his sister travelled in October 2013 while he arrived [in] April 2014 (he recalled it being March, a difference that I do not place any weight on). I asked why they had rushed to obtain the marriage certificate as he did not join her immediately. He said that his sister was constrained by their culture, and he wanted to help his sister earn her freedom and pursue her career. He said that their parents were supportive, but it was their relatives who instead tried to get her married and disagreed with her going overseas. Through this process he said that the extended family would make derisive comments to the applicant about his sister such as asking, ‘what kind of man are you.’
As noted, the applicant sought a second falsely obtained document, a birth certificate. The birth certificate was obtained for the purposes of supporting their parents to travel to Australia to attend the graduation ceremony of the applicant’s sister. The applicant claimed that as a part of the requested supporting documentation for the tourist visa they were asked to provide his birth certificate. Realising that his genuine birth certificate would show his parents’ names as being the same as his sister’s, which on the Australian government records would highlight that they were siblings and not husband and wife, he decided to request through his mother to obtain a fake birth certificate. The birth certificate was obtained in Uzbekistan but ultimately the applicant and his sister chose not to go ahead with the visa application for their parents to Australia.
The applicant said that it was his mother who bribed [Official A] for the fake birth certificate but that he was the one who paid her for the marriage certificate. He believes that regardless of who carried the cash, he will be charged with the entirety of the offences.
The applicant said that [Official A] called his mother in 2017 indicating that the authorities were investigating. This was the first show of interest by the authorities according to the applicant according to the applicant. [Official A] told the mother that the children should not return to Uzbekistan. He believes that she is worried about the matter escalating if they were to return. He referred to [Official A] threatening his mother but when pressed, this was clarified as simply asking that the children do not return.
The applicant said that he initially thought about just coming to Australia to help his sister and then resume his life, but I noted that what he did led to permanent measures that would preclude any easy resumption of a life in Uzbekistan such as a stamp on his passport indicating that he is married. He responded that he was young, he didn’t think it through, and he just wanted to help his sister.
The applicant provided an assessment of his circumstances from a Tashkent lawyer. 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 concludes 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.
The Criminal Code obtained separately from the submissions but put to the applicant at the second hearing explains the following:
Correctional labor shall be compulsory engagement of a person in labor with deduction of ten to thirty per cent of his salary to the State, to be served in accordance with a court sentence, at the place of employment or other places determined by agencies in charge of execution of penalty.
I noted that the meaning of a ‘basic calculation value’ aligns with what is described in the criminal code as fines based on ‘minimal monthly wages’ and can be imposed in units ranging from 5 to 600. Based on the detailing of the system of penalties in the Criminal Code I put to the applicant that the lawyer’s reference to calculation values is aligned with minimal monthly wages fines. The applicant did not disagree.
I noted that his crime was a victimless crime and that he did not undertake any of the production or forging nor did he sell them but instead only used them and this use was not in Uzbekistan. I put to him that on the face of the material before me it would be highly probable that he would face a low penalty which would amount to a fine and potentially correctional labour.
He responded that he doesn’t agree. He said that maybe a forged marriage certificate would lead to a minor penalty, but the birth certificate is serious because it is the basis of someone’s identity, and it won’t be easy for him to get off.
The applicant claimed that the authorities had attended their family home in 2018 and once again earlier this year. The applicant explained that his uncle is living at his registered address and hence he heard about this through his uncle, whereas his parents spend some of their time in Tashkent and some in Jeezak.
He claimed that the authorities asked his uncle about his and his sister’s location and their visa status on two occasions and asked when they were anticipating that the children would return.
But I noted that his mother had also been involved in bribing [Official A] for the birth certificate and yet nothing has happened to her. He responded that maybe they didn’t open a case on his mother. He added that if they opened a case for his mother, then it would be only for the bribery.
The applicant further speculated that maybe [Official A] did something to stop the case and that is why she doesn’t want the applicant and his sister to return to Uzbekistan because when they pass through passport control the information about being married to his sister would be made known.
The applicant’s practice of Islam
The applicant explained that since his childhood he has been interested in Islam. But he said that the authorities focus their attention on those that exhibit some tendency towards a dedicated interest in Islam as it is perceived to be extremist.
He said that when he was young his parents didn’t allow him to have a beard. He said that his parents were worried that he would be in trouble by the authorities.
At the hearing the applicant had a short beard, which would be described as a seven-day growth. At the second and third hearing it was a little longer.
The applicant described that while he was growing up young people weren’t allowed into the mosque and those that were would be questioned by the authorities. He explained that these measures were to prevent radicalisation. He described how his parents stopped him from using social media to prevent him from being susceptible to radicalisation.
The applicant claimed that in Australia he practices Islam freely, he can learn the Koran and he can go to the mosque five times a day. But in Uzbekistan he recalled reading news of how a young man was listening to a song in Arabic for which he was put into jail.
The applicant has a group chat on his phone with others in the Uzbek community. They discuss aspects of Islam and share Islamic songs. He believes that this would not be accepted in Uzbekistan.
He claimed that now you can’t teach your child basic tenets of Islam. In response, I noted that there are over 2,000 mosques in the country, 17 Koran and Tajweed courses, call centres on Islam, e-platforms that answer any question on Islam, 15 dedicated institutions to teaching Islam, 3 higher education institutions and 10 secondary institutions. I suggested that none of this indicates that one can’t teach children Islam.[1] He said that there is a population of 40 million people and that those figures are insufficient for such a sized population. He further added that you have to receive an Islamic education through the government-controlled centres. He said that you can’t choose where you learn Islam from.
[1] >
He claimed that in Australia he could fast during Ramadan and that this was an issue that pertains to his fears of practicing Islam in Uzbekistan. But I noted that country information indicates that half of the population in Uzbekistan fast during Ramadan, and yet not all of them can be persecuted nor are there reports available to the Tribunal that indicates that any people who fast are persecuted.[2] He said that 96% of Uzbeks are Muslim, but when you practice more deeply then you get into trouble.
[2] >
I noted 73% of people give zakat, which indicates that people can adhere to their Islamic obligations. Thirty percent view religion as very important, which places him among a large group of Uzbeks, and 17% say they pray several times a day as the applicant does.[3] I noted that there is no indication that these large numbers of Uzbeks are being persecuted. I said to the applicant that this indicates that those who are faithful Muslims, such as he claims to be, can practice their beliefs without harm. The applicant returned to the argument that those who take it more seriously are targeted. He described it as his right to practice as he wants to.
[3] ibid
I asked in what way can he not practice his religion. He said that being free to practice how he wants to, and he doesn’t believe that he can there. He identified being able to read any books he wants and discuss what he wants to discuss with whom he wants to discuss.
I noted that under the new government (installed in 2016) they lifted the ban of minors attending mosque and that the senior most mufti, Mirziyoev, said that now under the new regime Uzbeks can walk the streets without any fear.[4] He responded that they are still arresting people with beards and that they forcibly shave off beards. He said that there isn’t clarity on what can be watched or listened to. He referenced again the man who was arrested for listening to an Arabic song.
[4] type="1">
An article covering a television debate about the arrest was found referencing this incident which supports the applicant’s description.[5] In summary, in 2023 a 21-year-old student at Tashkent State University of Economics was found to have religious songs on his phone. The religious song was found to be ‘infused with ideas of fanaticism’. I put to the applicant that in Australia if you have content that is inciting violence it could under certain circumstances also be illegal. I noted that the student was found to have broken the law in Uzbekistan. The applicant said that sometimes he doesn’t know what the meaning of the words are that he is listening to. He asked rhetorically, how fair is that to be punished for listening to words that you don’t understand.
[5] >
The applicant claims that with a beard he can’t be employed. Once jailed, he suggested that he wouldn’t be able to find a job. He said, ‘someone practising Islam can’t find a perfect job.’ The applicant said that there is no law that prevents people from having a beard appearing on television but noted, as an example, that no one on television has a beard. Those who practice authentically are not always welcome, he claimed. He gave examples of his experience as a teenager when he was at college being singled out for having a beard and being referred to as a ‘terrorist’ and while working in the [Public Agency 1] not being allowed to have a beard.
The applicant said that while the laws are clear, the process is corrupted. He said that you only read about those who complain and give interviews.
One of the articles that the applicant provided to the Tribunal had a picture of the new President meeting with the Grand Mufti along with other men. I noted to the applicant that the Grand Mufti and another man have beards and asked how it could be that they were allowed to have beards. He noted that muftis are allowed and added that the other person had a very short beard. He added that they are elderly men and the government would not be concerned about the possibility of them being radicalised.
In another article provided by the applicant to the Tribunal in post-hearing[6] submissions it states:
The sportsman -- who won a gold medal at the Paris Olympic Games this summer -- told RFE/RL that he and several other athletes who wore full beards were ordered to trim their facial hair ahead of a video call with their country's president, Shavkat Mirziyoev.
[6] >
The relevant point was that the sportsmen were ordered to ‘trim’ their facial hair and not shave it. This is consistent with other country information provided by the applicant.[7] In one report provided by the applicant the singer who is photographed with a beard similar to the applicant’s was told that if he wanted to appear on television he would have to shave his facial hair, but it also notes that prior to appearing on television, he had maintained a beard and appeared in social media postings with a beard.[8] In the reporting provided by the applicant the various government authorities consulted denied any raids or forced shaving of beards.
[7] For example: ‘Fear of religious symbols. Anti-beard raids in Tashkent again;, February 09, 2024
[8] >
I also noted that the country information he had provided described harassment for having a ‘bushy’ beard and the law describing the purpose of banning some beards being that some beards prevent identification. The applicant said that he doesn’t believe that the government applies the law that way. He recalled again his experience of being at college and said that at that time it was a number 1 or 2 cut and yet he was identified as a terrorist by a lecturer. He said that the issue for the authorities is that it is an exhibition of an Islamic tendency.
When asked of the religious significance of having a beard, he said that his religious views don’t allow him to shave it all off. He described it, in addition, as a reflection of his desire to control his own appearance.
The applicant fears that if he was detained, he would be kept in prison without access to lawyers and without charge. He reasoned this because he believes that it happens often, particularly when it comes to religious cases. No information was provided that would support this claim.
I noted to the applicant that some commentator’s reasons for why Uzbekistan is careful with Islam is that the authorities fear the development of Islamic extremism as there has been a history of terrorism and Jihadist Islam developing roots in Uzbekistan.[9] As such, I asked whether such laws had some degree of legitimacy. He responded that such purposes should not trample the rights of others.
[9] >
I acknowledged that there are over 2,200 individuals in prison on religious grounds, but I noted to the applicant that the profiles of these people include people related to terrorist groups and those who are publicly criticising government appointed religious leaders. I noted that he doesn’t have the profile of those that are being arrested.[10] He said that he watches videos, shares them with his chat group, and that he doesn’t need to be a public figure for his human rights to be violated.
[10] >
He added that because his wife is a practicing Muslim it will lead to further attention on him.
The applicant provided substantial country information including links which where accessible. Those in English were read and considered. Not all of these articles are summarised or referenced individually in this decision.
The applicant claimed that Uzbek authorities dictate the hutba (Friday sermon) and that he does not agree with this as it limits his ability to practice his faith as he chooses.
The applicant has worked in Australia in [various jobs]. I asked if his work impacted his ability to practice his faith. He said that he left [one position] as he wasn’t allowed to go to prayers. He said that at each job he would mention that he is Muslim and needs the opportunity to practice his faith. As he has chosen jobs in Australia that allowed him to practice his faith, I asked if he could choose a job that would allow him to practice his faith in Uzbekistan. He indicated that he shouldn’t have to make the choice.
Son not being registered
The applicant also raised the issue that he has a son who isn’t registered in Uzbekistan. I asked how this will lead to any harm. He said that it will create problems for him. We discussed whether he could register his son in Australia. He said that he couldn’t as he has the issue of the dual marriages and fake birth certificate which would create problems.
Having sought asylum
The applicant submitted country information about Uzbek asylum seekers in Russia who had then returned to Uzbekistan and were arrested under the previous regime. I noted that this occurred in a limited period under the previous regime nearly ten years ago. I asked if he had information that under the current government people from the West were being arrested. He said that things don’t change overnight. He said that they called someone to come from Turkey and once he returned, they arrested him. The applicant acknowledged that the person was an activist. He believes that his claim for asylum would be seen as betraying the country.
I suggested many people seek opportunities to live in the West and earn money and asked whether he could explain, truthfully, to those at immigration control in Uzbekistan that the best option for him to remain in Australia as long as possible was, upon the advice of his migration agent, to apply for protection. He said maybe that could be said, but he understands how things work in Uzbekistan and that approach wouldn’t work. He said that he would need someone powerful to guide him through immigration and that he hasn’t heard of a case where people who sought asylum and have declared it that they have passed through.
I noted that there is substantial evidence that the Uzbek government is trying to forge closer ties to the West[11] and as such it would be highly unlikely that they would prosecute people who had remained for an extended period in the West including potentially having sought asylum. He said that in the past Uzbek governments had sought closer ties to the West, yet they still behaved as they did.
[11] and >
Country information regarding the situation of failed asylum seekers from the period prior to the new regime was discussed with the applicant:
Both HRW and Memorial was of the opinion that the nature of the activities abroad is more important for possible reactions in the event of a return to Uzbekistan than the fact that a person has been an asylum seeker or a migrant worker (interviews in Oslo, February 2015). Memorial considered that the Uzbek authorities do not make a very sharp distinction between asylum seekers and migrant workers.[12]
[12] Query response Uzbekistan: Return situation of Uzbek nationals who have resided abroad, LandInfo, January 2017
That there is no distinction made between migrant workers and asylum seekers needs to be further qualified by the fact that neither source suggests migrant workers face any harm.
The final sentence of this quote was read out to the applicant. He said that despite there being a new government the same things were happening. He recalled that the leadership has many times said that there won’t be any harm to those who return and yet those who return are tortured. He gave the example of a man from Turkey.
The applicant provided a statutory declaration by a fellow Uzbek who described the process of going through immigration as they enter Uzbekistan. The contents of the letter can be summarised as follows:
a.He visits every year to Uzbekistan.
b.He would be questioned by border patrol on arrival almost every year asking what he was doing in Melbourne and on what visa he remained.
c.He would be taken to a room where they would go through his belongings including his phone and check his social media activity, messages and gallery.
d.He has a beard, they ask about it, they would focus on it and question his religious beliefs and his practice of his religion in Australia.
e.The whole process would take up to two hours.
f.He would sometimes be required to return to a police station a week later to be asked similar questions again.
g.He heard of people who argued with the border patrol about their treatment that they would receive harsher treatment including having their beards shaved, being beaten or detained for 15 days.
Military service
The applicant is [age] years old and acknowledged that the latest you can do military service is [younger] years of age. He didn’t claim that he would face military service, but that not having completed it, would lead to other questions being asked and open the door to the above listed issues.
The second named applicant’s religiosity
The second named applicant was born in Samarkand. She lived there for [range] years and then moved to Tashkent where she continued her studies. She studied until [grade] and then transferred to [college] but she didn’t complete the [college] course because the family moved back to Samarkand. Upon return to Samarkand, she completed an [tertiary] course. Upon graduation the family moved to Australia in 2016.
The second named applicant is the applicant’s wife. They met in Australia. They described how they met as, her family were traveling from Uzbekistan to Australia without contacts in Australia and had reached out on social media for help among the Uzbek community. He responded and offered to orient them to Australia, acted as a reference for their first rental house and answered general questions. After getting to know each other this way, eventually married.
In Australia she has worked in hospitality and as an [occupation 1] for [Employer 1]. She quit her job when she was pregnant and has not worked since. She intends to return to the work force but possibly after studying [subject 1] as that is where her current interest lies.
In the documents and submissions no claims were made directly by the second named applicant. She did not attend the first hearing. At that stage the representative noted that he had no instructions by his clients regarding her claims. I noted that there was mention of fear arising from wearing the hijab in the applicant’s statement. At the hearing the applicant said that she is not claiming anything other than religiosity and the impact of finding work or studying arising from wearing a hijab. I put to the applicants that the hijab is banned in schools but not on the street where people wear it, referencing the following country information:
The number of girls and women wearing hijabs on the streets of Uzbekistan’s cities and districts has noticeably increased
Today, women in Muslim garb walk freely both in small villages and in the major cities of Uzbekistan.
Moreover, it seems that religious clothing has become a fashion trend for young girls. In almost every store in Uzbekistan you can now find a stand with clothes for covered women.[13]
[13] and >
The second named applicant indicated that she intended to continue her studies in Australia and as such may do so in Uzbekistan but claimed that hijabs are banned at universities. I challenged this claim by referencing country information provided by the applicants to the tribunal of a university[14] that did not have such a restriction. The article discusses how students who wear a hijab were surprised that they were being asked to tie it back, in other words, the headscarf was allowed to remain as a head covering. In another reported case in the same article some students were required to remove the headscarf, such as those intending to live in a dormitory.[15]
[14] In Tashkent, raids against beards and hijab, religious restaurants are being closed, September 15, 2023
[15] In Tashkent, raids against beards and hijab, religious restaurants are being closed, September 15, 2023
I note that there is no evidence before the tribunal that wearing the hijab prevents people from finding employment nor can it be inferred that wearing the hijab is banned outside of a few government institutions and instead the evidence suggests that it is commonly worn.
The applicant’s view was that it shouldn’t be banned in schools or universities at all. He said that if it’s banned there then that is just the beginning of other restrictions. I disagree. The trajectory of changes in Uzbekistan are going from a highly restricted policy of limited displays of religiosity to a greater relaxation, as such that there are some places that continue to ban the hijab is more reflective of remnants of the former policy then precursors to a future policy.
The second named applicant’s harm arising from her mother’s circumstances
The second named applicant’s parents have applied for protection visas. In summary, the second named applicant’s mother has been charged with defrauding a family of US[amount] on the basis of promising to facilitate their migration to Australia. The second named applicant claims that no such thing occurred. The applicant expressed fears at the second hearing of being used as collateral to entice her parents back to Uzbekistan to face the criminal justice system.
No evidence was provided of the Uzbek government using family members as collateral or pressuring them in ways that would entice absconding offenders back to Uzbekistan. Considering the nature of the charges against the family of the second named applicant and noting that they are not charges of treason or attempted coup which may precipitate extra-judicial actions against family members, I find that the second named applicant will not be pressured or coerced in any way by the Uzbek authorities for reasons associated with her parents.
No claim was raised at either of the first two hearings regarding the second named applicant fearing harm from the family of those that lodged a complaint against the applicant’s mother. In a post-hearing submission following the second hearing the second named applicant claimed that the family will kill her.
A third hearing was arranged to engage with this claim.
The submission included a statement from her mother’s Uzbek lawyer. The letter from the mother’s lawyer was dated October 2024 and described the actions of a [Mr A] who had ‘repeatedly and deliberately visited the residence’ of the second named applicant’s aunt, the sister of her mother, in Tashkent, and engaged in aggressive behaviour. The behaviour included ‘breaking the house’s windows, damaging [the aunt’s] personal property, and demanding information on the whereabouts of [the mother] and her children.’ The lawyer wrote that he had made an official complaint to the local precinct regarding this ‘illegal behaviour’.
At the third hearing I asked the second named applicant to describe what she knew of the situation. She repeated what was in the letter explaining that her mother had not provided further information to her. She added that [Mr A] had visited her aunt’s house a few times. I asked why it was that her mother had only recently lodged a complaint to the police despite the incident being from before 2016 and a court case was claimed to have been lodged in 2018. She indicated that the harassment had begun only recently. I questioned whether it was plausible that [Mr A] would not have acted against any family member for 6 or 8+ years and then to start harassing them this year. The second named applicant thought that it could be because he hadn’t found where the aunt lived, which I also questioned asking why it would be difficult to find where her aunt lived as she had given evidence that her aunt had lived in the same house for ten years. The second named applicant did not have a response to this.
We discussed why the second named applicant had not raised it earlier noting that she acknowledged knowing about it since her mother applied for protection, suggesting it was in 2018 but subsequently correcting this and indicating that it was sometime later. Regardless of when her mother had applied for protection, the applicant did not raise this issue at the Departmental stage, at the Tribunal submissions stage, at the Tribunal’s first hearing, nor at the Tribunal’s second hearing. I note that the applicants were represented throughout the Tribunal process.
The applicant provided a post-hearing submission following the third hearing in which she claimed that she was anxious at the hearing and as such struggled to remember all her arguments. In this statement she wrote that [Mr A] had ‘repeatedly harassed’ her aunt asking for information about the family’s whereabouts. She believes that his frustration has grown. She believes that because she is the daughter, she is a target. She added that she believes that [Mr A] would think that she’d be returning with money to support ‘legal action that could expose his actions’. She added that she fears that the Uzbek authorities are corrupt and that they would not protect her against [Mr A].
In considering the credibility of the applicants’ claims regarding [Mr A] and the pursuit of the second named applicant’s mother I am concerned by how the information was provided to the Tribunal. I note that that the new s367A(2) of the Act requires that the decision maker, ‘is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.’

The applicants claimed that they only learned of this situation recently. They claimed that the mother was withholding the information and that the details were only becoming known to them in portions. When I asked the second named applicant if she knew that her family had applied for protection, she said that she knew but that she didn’t know the extent and details of the situation and threat to her.
I asked whether this suggested that her mother was intentionally withholding information that could lead to her daughter being harmed, to which the applicants disagreed. I put to them then that didn’t that suggest that her mother didn’t think that the consequences would reach her daughter. The applicants acknowledged that the mother cares about her daughter. The applicant suggested that it’s because the mother saw the matter as being related to their case. They confirmed that nothing more was conveyed by the mother.
I find that the applicant’s response to why the information was not provided earlier is reasonable and as such the provisions under s367A(2) do not apply but I also find that the reason that the information was not provided by the mother to the daughter through these years and even now is that the mother does not believe that her problems pose a threat to her daughter.
Considerations
The applicant is a practising Muslim. It would not add value to label his beliefs, nor did he try to pigeon-hole himself. Instead, the applicant identified his concerns as there being insufficient freedom to practice Islam as he chooses to and there being some official oppression against those who chose to adopt certain visible identities such as a beard for him and the hijab for his wife.
In considering these claims I first turn my mind to the country information about Islam in Uzbekistan. The overwhelming majority of the population are Muslims. As noted above there are mosques and educational facilities open and available to Muslims. The applicant’s claims that there aren’t enough for the population is a subjective assessment that doesn’t inform whether the applicant is owed protection. There could be even fewer mosques throughout the country but if the applicant has access to one then his ability to practice his faith would be fulfilled. Considering that there is no evidence before me that the Uzbek authorities limit citizens’ abilities to choose where to live and as such the applicants being in a position to choose to live next to or close to a mosque of their liking, I find that there isn’t any limitation for the applicants to practice their faith as often as they choose in a mosque. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm for the reason of a lack of religious resources to practice his faith.
The applicant had concerns over the government controlling the hutba that is preached by the imams of Uzbek mosques. The applicant can use his own judgement to determine which aspects of the hutba are those that he should adhere to and those that he should not. He is not being forced to adhere to the teachings being conveyed by the imam. I accept that he will have to sit through and sift through the hutba’s teachings, but I find that doing so does not amount to serious or significant harm.
The applicant claims to fear being monitored if he attends a mosque. No country information is available to the Tribunal that suggests that this is the case, particularly under the new regime. The transition to President Mirziyoyev occurred in 2016, as such there has been enough time to establish and report on the new norm and this has not included claims of monitoring individuals of the applicant’s profile who attend a mosque. As such I find that the applicant will not be monitored and in turn does not face a real chance of serious harm or a real risk of significant harm.
The applicant fears harm by way of having to shave his beard. There is evidence of this occurring in Uzbekistan, though the reporting on this varies. Some suggest that it is only long beards, that is beards that are associated with extremism as detailed above. The applicant’s beard is not of such a length or cut. As noted, the applicant had a 7-day growth at the first hearing and by the second and third it was thicker but still not of any length that could be confused for the longer style beards of jihadist extremists. The applicant did not dispute this. His concern was that any beard risked being shaved. Country information was provided of in some instances this occurring.
As noted, the Grand Mufti has a beard and another man in the photo meeting the President had a beard. Others had goatees. While the Grand Mufti was elderly and a mufti, others were not. This indicates that at least some expression of religious adherence by way of facial hair is accepted even in a public setting of meeting the President and the meeting being recorded by the media. In other words, the disquiet by the authorities towards men having beards is not such that it prevented a public exhibition of engagement by the President.
Other articles were discussed that showed individuals being asked to trim or shave their beards before public appearance but prior to the public appearance they were able to maintain them.
Noting the mixed messages, in considering the circumstances the applicant faces as a result of having a beard, I find that there is a real chance and a real risk that he will be confronted about it upon return or into the reasonably foreseeable future. But in considering whether being asked to trim it back to something equal to or less than a 7-day growth or having it temporarily shaved amounts to serious or significant harm, I need to consider the impact it would have on the applicant.
When the applicant was asked about why he feels a need to wear his beard in the way he does and would not want to shave it, he said that it was his religious belief and in addition he felt that it was an infringement on his rights.
The applicant’s growth at the first hearing was not a full beard, he attended the hearing with a 7-day growth at a time when he was free from fear. That he subsequently allowed it to grow does not diminish the fact that he was wearing one at that length when he attended the first hearing.

100. When considering the entirety of the evidence before me, I find that the applicant will be able to maintain a beard as he had when he appeared at the first hearing. I find that he may encounter an overzealous official who will require him to shave it further or completely, but I find that such an act will present a very short and temporary imposition on his perception of self and his perception of his religiosity which would not amount to serious or significant harm. This is different, as a contradistinction, to a baptised Sikh being asked to cut their hair which is grown over decades and is a central tenet across all sects within the faith. As such, I find that the applicant does not face serious or significant harm arising from wearing his preferred length of beard.
101. I have also considered the applicant’s claims of receiving derogatory remarks about being a ‘terrorist’ when he was younger and at college. I note that the situation has changed considerably since then. There is much evidence to suggest the government is more accepting of expressions of religiosity and in addition, I find that such commentary does not amount to serious or significant harm. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from social commentary on his outward signs of religiosity.
102. The applicant has identified a concern over his child being unregistered. I accept that his son is not registered with the authorities and that upon return he would need to be. Assuming that the applicants do not register or are unable to register the child prior to their travel, the applicants will face administrative hurdles in Tashkent dealing with the registration of the child. While I accept that this will create administrative challenges, I find that it will not amount to either of the applicants facing serious or significant harm.
103. Similarly, that the applicants have an unregistered child will not lead to them facing a real chance of serious harm or a real risk of significant harm from society in the form of discriminatory treatment or social isolation.
104. The applicant and his wife identified a concern over the second named applicant wearing the hijab and in turn a hindrance to her ability to find work which also aligned with the applicant’s concerns over his ability to find work due to his beard. The applicant also raised concerns about whether the workplace would allow him to practice his faith as he chooses.
105. It is important to note that both applicants did not claim that they could not find work but rather that they could not find the work that they wanted. But I note that these are choices people make even in Australia. The applicant explained how the jobs he held in Australia impeded upon his ability to practice his faith and as such he chose to move on to other roles. The second named applicant chose to stop working because she wanted to prioritize being a mother.
106. I accept that there are some jobs, particularly government jobs that would require the applicant to shave or the second named applicant to wear a more discrete hair cover[16] or not at all. But these jobs are not the only jobs available to them. The question is whether the applicants will face harm from a lack of employment such that they will face serious or significant harm. I find that the evidence does not support this claim. It may be that the applicant will need to resort to driving taxis or other lower profile work that does not appear in the public spotlight but does not align to his preferred occupation. It may be that his wife will become the primary income earner. While these changes will lead to some hardship upon the applicant and his wife, I find that it does not amount to serious or significant harm.
[16] To avoid doubt, this is not a question of the applicant requiring modifying his behaviour. He has worked various roles in Australia and Uzbekistan, including [a specified job]. There is no behavioural change required for the applicant to find work that allows him to practice his faith as he deems necessary.
108. As no information was provided that indicated that wearing the hijab prevents all types of employment and noting the above country information that describes the wearing of the hijab has noticeably increased and that it is a fashion trend, I find that the second named applicant will similarly not be limited in finding some work.
109. The applicant fears harm arising from his role in obtaining marriage and birth certificates illegally. As noted, they were not forged, but rather the process through which his go-between went was an official process that transgressed the laws, that has nevertheless now left the applicant with an official record that will be identified upon return. This was confirmed by the Tashkent lawyer’s submission, which I accept.
110. The relevant question is, firstly, whether there is a real chance or a real risk that the applicant will face, respectively, serious or significant harm. Secondly, if so, then whether the laws that will cause him to bear that harm are laws of general application.
111. As noted above, in the Uzbek criminal code there is a range of penalties for the violations that he will be found guilty of ranging from a fine, to labouring through to imprisonment. In considering the penalty he will face I note the following relevant factors:
a.The applicant’s mother-in-law who bribed [Official A] for the birth certificate has not been charged or sentenced.
b.[Official A] has not been charged or sentenced.
c.It was a victimless crime.
d.As the applicant noted, the marriage certificate is not a document of great significance.
e.The forged birth certificate was requested by the applicant for the applicant, but he was not directly involved in the bribe nor the forgery.

112. When these things are taken into consideration, I find that the applicant will face an administrative delay at the airport and that he will be charged sometime shortly thereafter. I find that the applicant will not be detained due to the factors listed above and that once he appears before the courts he will not be sentenced to imprisonment. I find that the applicant will be fined and possibly required to undertake some community service. I find that these penalties do not amount to serious or significant harm for the applicant.
113. I also find that any social opprobrium that being found guilty of such acts will inflict some harm in the form of low level ostracization and adverse commentary, but I find that none of this would amount to serious or significant harm.
114. There will be additional and separate social opprobrium arising from the applicant being registered in a marriage with his sister. While this was not religiously sanctified and there is no reason that people would consider it was consummated, there would be some social commentary directed at the applicant for having thought it acceptable to have done what he did. That he is now married to an observant Muslim and he himself is outwardly observant would mitigate accusations of immorality and limit the vitriol.
115. I have also considered whether [Official A] may seek retribution against the applicant. Noting that there is no claim that she has sought any retribution against the applicant’s mother who was the main point of contact, I find that she will not and hence that the applicant does not face a real chance of serious harm or a real risk of significant harm from [Official A].
116. With regards to the second named applicant’s parents facing charges of fraud and having found that the second named applicant will not be pressured or coerced in any way by the Uzbek authorities for reasons associated with her parents I find that she does not face a real chance of serious harm or a real risk of significant harm arising from the authorities for reasons associated with her parents.
117. In considering the second named applicant’s fear of harm from the alleged victims from her mother’s alleged fraud, I note that the second named applicant’s aunt has not been harmed nor is there a claim that anyone has been harmed despite the dispute having persisted for at least six years since the court date and over eight years being the time since the family left Uzbekistan. I acknowledge that some property has been damaged.
118. The applicants’ argument that the daughter is more valuable than the aunt and therefore a target, I find unconvincing. If [Mr A] wanted someone to use as leverage to get some money back over the past several years, assuming money was taken, then any close relative to the mother would suffice for that purpose. Ranking relationships and creating a cut off between a daughter being useful leverage but a sister not is not plausible.
119. I also found the mother of the second named applicant choosing not to provide further information to her daughter as being indicative of the mother not considering the situation as not having serious consequences for her daughter.
120. With regards to the second named applicant’s claims that she fears harm from [Mr A] for reasons that he will believe that she is returning to Uzbekistan with money to support legal action is speculative and implausible for the reason that money can be transferred across borders without the requirement of a person being physically present to fund legal action.
121. When considering all of the information before me, I find that the applicants do not face a real chance of serious harm or a real risk of significant from the family who was defrauded.
122. To avoid doubt, I note that the second named applicant had expressed fears of the Uzbek authorities not being able to protect her because of corruption, but having found that she does not face a real chance of serious harm or a real risk of significant harm from [Mr A] whether the Uzbek authorities are corrupt is not relevant.
123. She also claimed in her final statement to fear some harm arising from being questioned by the authorities who are seeking further information about her mother. She presented her case as being a part of a range of questioning that the authorities will undertake which in turn will increase her anxiety and that she won’t be able to handle the pressure. I find that on its own the authorities asking her about her mother will not lead to the applicant facing a real chance of serious harm or a real risk of significant harm from the authorities for reasons of their questioning her about her mother.
124. The applicant suggested that in Uzbekistan anything can happen for USD[amount] and that even the mafia would get involved in his wife’s fraud issue. But I noted that the second named applicant was saying that her mother was wrongly accused and that she had not taken any money, in which case the mafia would not get involved. In addition, I note that there is no evidence that the mafia has become involved despite the 6 to 8+ years that this issue has been live. As such, I find that the second named applicant does not face a real chance of serious harm or a real risk of significant harm from the mafia.
125. Regarding the second named applicant’s fears of harm arising from her wearing the hijab and not being able to study her chosen course, I find that this may be the case, depending upon which course she studies and where she studies. The country information discussed with the applicants suggests that in some places and in some circumstances the hijab is accepted while it isn’t in other places. But the applicant has only vaguely expressed an interest in further studies in [subject 1] and that is in the context of Australia. I find that on the evidence before me it would be speculative to place weight on the second named applicant’s thoughts about further studies in Australia as reflective of the choices she would make in Uzbekistan. She already has substantial qualifications from Uzbekistan that would not compel her to seek further studies and has currently chosen to not return to the workforce. As such I find that into the reasonably foreseeable future the applicant will not resume studies and as such, she does not face a real chance of serious harm or a real risk of significant harm in the university.
126. With regards to the applicants’ claim that they fear harm for reasons of having applied for protection in Australia I acknowledge the evidence about asylum seekers returning from Russia being harmed. But I also note that it has been eight years since that instance without further examples. I also note that there is explicit country information from credible sources suggesting that there is no harm faced by returnees and there has been a change of Uzbek government which is more Western friendly.[17] All of this strongly tends to a view that those who have applied for protection in countries such as Australia do not face a real chance of serious harm or a real risk of significant harm.
127. Conversely, the applicant claimed that he believes he would need a powerful person to guide him through immigration and that he hasn’t heard of a case where people who sought asylum and have declared it that have then passed through. I accept that he hasn’t heard of such people, but this doesn’t mean that it doesn’t happen. Overall, as far as the weight that should be afforded to the applicants’ lack of knowledge of such instances, I place limited weight.
128. The applicant also provided a letter by a friend who regularly returns to Uzbekistan and has a beard detailing his experiences. I accept that the type of treatment the letter writer encounters is the same type of treatment the applicants will encounter with regards to their religiosity.

129. There is no reason to believe that either of the applicants would quarrel with border patrol.
130. With regards to having sought asylum, the applicant provided evidence of border patrol questioning individuals who had markers of religiosity (letter from their friend) but not one who had claimed asylum. Instead, credible sources indicate that the government does not have an adverse reaction to people who have sought asylum. As noted above, migrant workers do not face additional challenges at immigration and as such I find that their extended period of time living in Australia would not lead to any adverse attention. When the entirety of the evidence pertaining to returnees is considered as a whole, I find that the applicants do not face a real chance of serious harm or a real risk of significant harm for reasons of having applied for asylum in Australia and for having lived in Australia for the period that they have.
[17] and considerations
131. The applicants have each identified several layers of fears. None of them individually were found to lead either of the applicants’ circumstances to trigger Australia’s protection obligations. In the following section I consider them cumulatively through how they impact the applicants at each stage of their arrival and residence.
132. In considering how the various claims of harm interact, compounding the risks or increasing the harm, I note that the two primary concerns are that the applicant will face prosecution for his role in the falsely obtained documents together with being overtly religious and similarly the second named applicant will face harm from authorities’ questioning about her mother together with her religiosity. It is probable that these two main claims for each applicant will be compounded at the border by the applicants being known to have sought asylum, having lived in Australia for an extended period and having an unregistered child.
133. Noting that these claims will all become known to immigration officials, I now turn my mind to considering whether they would compound such that the chance is more than a real chance that the applicants will face serious harm or that the risk is more than a real risk that they will face significant harm. In considering this claim, I would agree with the applicant if he had more overt markers of extremism such as a Salafist beard, that he dressed as a Wahabi or that he was known as a religious activist. But the applicant has no markers of extremism. I accept at border control other aspects of his religiosity would become apparent such as his phone having a group chat where he discussed religious matters and his wife being covered. While I accept that the applicant’s beard and other markers of his religiosity would lead to a longer time with border guards at immigration, I find that it would be only marginal so.
134. I note that the two applicants being together, both being religious, both having fraud related issues before the state authorities, will compound each other’s risks.
135. With regards to having an unregistered child, I found that this will create additional attention, but I find that the additional administrative challenges will not change the nature of the treatment the applicant faces from border patrol.
136. That the applicants’ sought asylum and have lived in Australia for an extended period will further marginally increase the time and attention border guards spend with them.
137. When considered as a whole, I find that the situation the applicants face passing through immigration taking into consideration cumulatively all the possible sources of harm including longer and harsher questioning will not lead them to face a real chance of serious harm or a real risk of significant harm.
138. The applicants will also face some challenges from within the community once they pass through immigration. The possible sources of harm from the community detailed above are numerous. In summary, the applicant claimed that he’d face harm by way of discrimination from potential employers and receiving verbal comments from society in general about his religiosity. There would be a small impact arising from social ostracization for reasons of having been found guilty of participating in bribery and fraud. The applicants have a son who is not registered and for some period upon their return it would become known among their community and friends. That the second named applicant has someone who is opposed to her mother would add a further source of social enmity towards them both. The most likely source of harm from the community would come from the knowledge that the applicant and his sister had married on paper and that the applicant thought taking such action was reasonable. When considering all of these sources of harm from society I find that they will compound, the people who would socially isolate the applicants for one reason would feel even stronger against them for other reasons. It may be that knowledge of the applicant’s participation in fraud and bribery would be heard by a potential employer and so further limiting his changes of finding employment. But when considered cumulatively I find that the applicants do not face a real chance of serious harm or a real risk of significant harm from the community.
139. The potential persecutors that the applicants face from within society are separate to those from within the government with little overlap. It is possible that the government actions will accelerate the speed with which the community learns of the applicants’ actions, but I find that they will not compound the harm nor the risk of harm.
140. With regards to the second named applicant, she also has fears of two sources of harm, society, and the government. With regards to the government, that she exhibits some religiosity while her mother is wanted, I find will not lead to an increase in the risk of harm she faces from the government for the reason that wearing the hijab has clearly become more common and expressions of religiosity more accepted by the government.
141. With regards to harm that she faces from society, there was no claim of the problems her mother faces somehow including harm from members of the defrauded family or society at large. Nor do I accept that the government’s pursuit of her mother will somehow lead to the applicant facing serious or significant harm, despite her most likely seeing a loss of some honour or status.
142. I have also considered whether the wife’s religiosity will compound the applicant’s risks and vice versa from the community. Considering that neither are overtly extreme in their outward practices of their faith and noting the country information detailed above, I find that their relationship to each other will not lead to any increased risk or harm.
143. Once the applicants are engaged by the government while in the community, firstly the applicant being charged and convicted, and the second named applicant being questioned. I accept that the community will be less warm to the applicants because of their engagement with the law and their past actions, but any such distancing by the community because of this will not amount to serious or significant harm.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

145. The Tribunal affirms the decision not to grant the applicants protection visas.
Dates of Hearings: 16 August 2024, 2 October 2024, 30 October 2024

Representative for the applicant: Visa Nathan through to 7 October 2024; Ramazan Altintas from 8 October 2024.
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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