2311266 (Refugee)

2311266 (Refugee) [2024] AATA 3513 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Shira Nina Sebban (MARN: 2217749)
CASE NUMBER: 2311266

COUNTRY OF REFERENCE: Kazakhstan
MEMBER:Phillippa Wearne
DATE:2 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the child applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 02 July 2024 at 6:24pm
CATCHWORDS
REFUGEE – protection visa – Kazakhstan – divorced women – victims of family violence – single mothers – gender-based violence – family violence – marriage to a foreigner – mental health issues – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 499
Migration Regulations 1994, 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
BACKGROUND

The first named applicant (the applicant) is [an age]-year-old national of Kazakhstan. The second named applicant is her [age]-year-old daughter (the child applicant). The applicant most recently arrived[1] in Australia [in] August 2018 with the child applicant as holders of Prospective Spouse (Subclass 300) visas. The applicant lodged an application for a protection visa on 3 January 2019, describing the child applicant as a member of the same family unit.
[1] The applicant previously travelled to Australia on an Electronic Travel Authority (Subclass 600 visa) [in] September 201father7 and departed Australia [in] September 2017.
On 13 July 2023, a delegate for the Minister of Home Affairs refused to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to her protection visa application, the applicant was born in [Country 1] and resided in Almaty, Kazakhstan. The child applicant was born in Kazakhstan.
The applicant states that she reads, writes and speaks English, Kazakh and Russian. She gives her ethnicity as Kazakh and religion as Islam.
The applicant indicates that she travelled to [Country 2] in 2007; [and to other specified countries in specified years].
She also indicates that she was employed at the [Agency 1] in Astana in 2009 as an intern; [Agency 2] and [Agency 1] in 2010 in Almaty, also as an intern; as a manager at [a business 1] in Almaty in 2010; as an orders manager at [a business 2] in Almaty from 2011 to 2014; as [an occupation 1] at [Business 1] in Almaty from June 2014 to November 2016; and as [an occupation 2] at [Business 2] in Almaty from November 2016 to August 2018.
After completing her schooling in Almaty, the applicant completed a [Qualification 1] and then a [Qualification 2] at [University 1], Almaty.
The applicant made written claims for protection including the following:
·Growing up she witnessed family violence. She was also subjected to harm by her first husband in Kazakhstan while she was pregnant.
·The applicant remarried in Australia, however she also separated from this Australian husband.
·The applicant believes that she will be socially isolated and alienated if she returns to Kazakhstan because she is a single mother. She will be considered unmarried and undesirable, as well as bringing shame to her family. She will be assaulted by members of the community and her father. Her father will come after her.
·The Kazakhstani authorities cannot protect her. Seeking help from them would cause issues within the family.
·No matter where the applicant goes, she will be found by her father. Returning to Kazakhstan is a risk, as she knows the moment someone recognises her or she goes home, her father will be alerted to her arrival. Many people in the community socially isolate divorced women. She does not want any harm to come to her or her child.
The applicant also submitted an undated Protection Statement (13 paragraphs). A summary of those claims follows:
·She was born in [Country 1] because her parents were doing military service there for several years.
·Her father hit her mother often when the applicant was a child. The applicant feels like she has been surrounded by domestic violence.
·Her first husband’s name was [Mr A]. They married in Kazakhstan in August 2015. When she was four months pregnant, they had a terrible argument that lasted for hours. [Mr A] was violent to her and she returned to her parents’ home. She divorced [Mr A] in October 2015. The child applicant was born in [specified year].
·The applicant’s father was extremely displeased that the applicant left her husband after the husband’s violence. His belief is that a woman should always stay with her husband no matter what happens between them.
·Her mother stood up for her against her father. This caused many physical and verbal fights between them. Following one particularly violent attack from her father, the applicant, her baby and her mother fled to her maternal grandparents’ home.
·The applicant gave birth to her daughter and raised her without a partner. By the time she was 3, her daughter had seen her father ([Mr A]) only 3 or 4 times. The applicant allowed [Mr A] access so that he could get to know his child, but he made no attempt to support his child either emotionally or financially.
·The applicant met a kind man, [Mr B], from Australia on a dating website. He came to meet her family in Kazakhstan. She visited Australia and met his family as well. He was hard worker and had his own business. She admired many things about him.
·They applied for a Prospective Marriage visa in January 2018, which was granted in April 2018. The applicant came to Australia, and she married [Mr B] in December 2018. However, things did not workout. [Mr B] was not used to having a child around. They recently discontinued their relationship and separated in December 2018.
·After the Prospective Marriage visa had been granted to her, the applicant had told her father that she was moving to Australia, remarrying and setting up a life for her and her daughter in Australia. Her father was very unhappy about this. He told her that if it didn’t work out, she could not re-enter Kazakhstan because he would not accept a twice-divorced daughter into the country and he would make her regret it. He is especially angry with her because she lived with another man, so in his eyes, she is a woman who has been with more than one husband.
·The applicant knows what her father is capable in terms of his violent threats and actions. She does not think anyone will be able to save or protect her in Kazakhstan.
The applicant also submitted:
·A record of her birth in [Country 1], issued by Kazakhstani authorities.
·A copy of the biodata of the applicant’s and her daughter’s Kazakhstani passports.
·A copy of her Kazakhstani divorce certificate from [Mr A].
·A copy of her daughter’s Kazakhstani birth certificate indicating [Mr A] to be the father (with English translation) and a statement from [Mr A] consenting to the permanent relocation of their common child to Australia.
The applicant provided the Department with the following:
·An undated[2] supporting statement with an English translation from the applicant’s grandmother, [named].
[2] The applicant’s representative refers to it with the translation date of 27 October 2020.
·A supporting statement from the applicant’s former colleague, [Colleague A], dated November 2020. She stated that she witnessed phone calls and messages from the applicant’s father to the applicant.
·Copies of multiple Instagram posts from [a Kazakh group] which is an Instagram group dedicated to exposing family violence.
·A supporting statement from the applicant’s university friend, [Friend A], dated November 2020. They have been friends since 2011.
·A supporting statement from another friend of the applicant, [Friend B], dated October 2020. This friend has been known to the applicant for 15 years.
·Two undated[3] supporting statements with English translation from the applicant’s mother, [named]. Her former husband had been very violent throughout the applicant’s childhood. She has many scars from his violence. She ran away from him with the applicant several times during her marriage, but he always found them. Once when she fled to her parent’s home, he broke down their doors and set fire to them. She has moved cities to escape her former husband. She tried to leave him many, many times. She reported him often to the police. However, her complaints were never investigated and resulted in more violence from him. The applicant’s father would make the applicant’s life hell were she to return to Kazakhstan. When the applicant separated from her husband the applicant’s father was categorically against the applicant leaving the marriage. He made the applicant’s life unbearable. On one particularly bad occasion of violence she and the applicants ran away. However, he continued to follow them and threaten them. The applicant’s father became very angry after finding out that the applicant had separated from her Australian husband, promising if the applicant ever came back to Kazakhstan, he would make her life hell. Humiliation and violence are waiting for the applicants in Kazakhstan, and she is fearful for their lives. She has been divorced from her former husband for nearly 6 years but lives in constant fear of his violence as he still follows and threatens her. He rings her and threatens her. She has blocked his number. He comes to her door. The police won’t protect her. She is scared if the applicants return to Kazakhstan. She will not be able to protect them from her former husband.
·A supporting statement from the applicant’s Australian friend, [Friend C], dated May 2023.
·Screenshot images in support of the applicant’s efforts to block her father’s requests from her social media pages.
·A photo of the applicant’s mother with a scar on her [face] circled.
·A referral letter to a psychologist from [Doctor A], dated October 2022. It states that the applicant is depressed and anxious and has had some disturbance to her sleeping and appetite.
·A letter from [Social Worker A], an accredited mental health social worker, dated June 2023. She first met the applicant in November 2020, with sessions continuing fortnightly until September 2021 and further sessions in February 2022. The applicant scored exceedingly high on a scale[4] which measures general anxiety and depression. The applicant is recovering from domestic violence experienced from her father in Kazakhstan. Her father was abusive to the applicant and the applicant’s mother. The applicant’s Australian husband was also abusive to her and her daughter, including denying access to her SIM and phone, threatening to call the Immigration Department to revoke her visa and noncompliance with a Domestic Violence Order. The applicant has poor sleeping habits, isolation, mistrust of others, poor dietary habits, insecure housing, feels unsafe and overwhelmed and has low self-esteem, particularly in relationships. The applicant has experienced multiple controlling relationships. She needs to prioritise safety in her life.
·An Interim Apprehended Domestic Violence Order against [Mr B] dated April 2019 protecting the 2 applicants.
[3] The applicant’s representative refers to them with the translation dates of 26 May 2023 and 27 October 2020.
[4] Kessler 10 (score of 41).
The applicant submitted a Supplementary Statement dated 26 May 2023 (65 paragraphs). Amongst other things, she stated that:
·She has been divorced twice, including once to a foreigner. She is a single mother of a young daughter and is struggling with mental health issues resulting from the trauma that she has endured. She was raised Muslim but after her second divorce is an atheist.
·Her father has always been extremely volatile and unstable. He could never hold down a job for an extended period and would go through phases such as not eating on certain days, or not eating certain things, or becoming devoutly religious. His violence was unpredictable and very frightening. He threw and broke things and hit her mother with his hands or anything that was around. He was also verbally abusive. Sometimes he would scream at them for hours before starting the violence. The applicant hid from her father’s violence when she was a young child, but later felt guilty that she was not protecting her mother. When she intervened in the fights, her father started to attack her. When she was a teenager, he criticised her clothing and would not allow her to wear certain clothes. Throughout her childhood, he drank alcohol although he did not require alcohol to become violent. He usually drank with his friends. He was never physically violent in front of other people, but he would become verbally abusive.
·Women don’t get protection from the police in Kazakhstan. Although her mother reported violence nothing was ever done about it. The police would just say to her mother that they would go around and talk to her father later on. They did not provide anywhere for them to go. Her father always became much angrier when the applicant’s mother reported the violence. It only made the violence worse. People don’t regard domestic violence as a serious crime in Kazakhstan.
·When the applicant was about [age range] years old, her father became very religious. He stopped drinking. However, his violence and anger became even worse with his religious adherence. He started to go to the mosque every Friday and sometimes every day wearing traditional Islamic clothing. He tried to get the applicant and her mother to wear conservative clothes.
·The applicant married [Mr A] in August 2015, however, because of [Mr A’s] violence towards her they divorced in October 2015. The applicant did not report his violence to the authorities because she thought it was pointless. They would not believe her and would take no action to protect her. The applicant thought that she should leave [Mr A] because she didn’t want to be like her mother, who had been living with abuse for 28 years of marriage.
·Her father was very angry about her separation from [Mr A] and considered it to be un-Islamic. He regarded women as part of their husband’s property. He was furious when the applicant returned to live with him and her mother. However, she had to do this as she had no other alternative. Although her father was extremely aggressive, controlling and verbally abusive, he was not violent to her at this time. Perhaps it was because she was pregnant with her daughter. However, he continued to be very abusive towards the applicant’s mother. In September 2016, her father began beating her mother again, but it sounded much worse than usual. The applicant decided that she was not going to put up with this violence in her daughter’s life. However, her attempts to intervene were fruitless, and her father came close to hurting her child, who was only [age] and carried in a sling on the applicant at the time. The applicant ran into the garden and screamed for help. Her mother was able to make it outside to the garden where the applicant, her child and her grandmother were waiting. They ran out from the house. Her mother’s brother came and took them away to her grandmother’s house.
·They did not report this abuse to the police. The applicant has never seen a female police officer in Kazakhstan. Also, she and her mother were terrified of what her father would do if they did report the violence to the police. Although her mother was badly beaten, they did not go to hospital. She had only gone to hospital once following his violence and this was only because she required stitches on her [face].
·The applicant has never returned to the family home after they ran away on this occasion. The applicant, her mother and her daughter lived with their grandmother in a very small apartment still in Almaty, but away from her father.
·Her father came round to the apartment on several occasions. They never let him in. Her mother refused to go outside at all. They were all very careful and frightened of him.
·The applicant had one last conversation with her father before she left for Australia. They met in a public place. She told him that she was marrying an Australian man. He became immediately aggressive and threatened her. The applicant blocked his number on [a messaging service] and all social media accounts, even though he had sent many requests to her.
·The applicant’s mother has told the applicant that her father keeps stalking her in Kazakhstan. In October 2020, her mother re-partnered and moved to another city to be with her partner. However, the relationship did not last. The applicant’s father had contacted the applicant’s mother and threatened her.
·The applicant separated from her Australian husband, [Mr B], following his domestic violence. For the first time in her life, the applicant was encouraged to report the violence. She was able to obtain an AVO against [Mr B] straight away. She has become strong in the view that domestic violence is not acceptable, and she does not wish to tolerate violence in her own life or her daughter’s life.
·The applicant is fearful that if she is forced to return to Kazakhstan, her father will find her and her daughter and make their lives hell. He still tries to contact her on social media. When she sees that he’s done this she feels a panic reaction. She’s aware that he could destroy their lives.
·The applicant fears that there will be nowhere for her to hide if she returns to Kazakhstan. There is nowhere to go other than the house that her mother and grandmother share for support. She would not be safe there because her father’s home is in the same city and he would know of her return. Her father would be able to find her no matter where she moved in Kazakhstan.
·As a twice-divorced single mother living in an area without social connections, she would be seen as an embarrassment and bringing shame on those who associated with her. It is shameful to marry a foreigner in their culture. She would face employment discrimination and other discrimination. It would be difficult for her to find work and get childcare. Shame and discrimination would also fall on her daughter because of her association with the applicant.
·She feels gender-based violence in Kazakhstan not only from her father but other men. She has experienced violence in each of her relationships. She knows if she was to return to Kazakhstan, she would be subjected to further violence at the hands of men. In Kazakhstan, any violence towards women is seen as the woman’s fault and it is assumed that she is receiving deserved punishment for her wrongs.
·The applicant would not be able to receive treatment for her mental health condition if she was to return to Kazakhstan. She feels safe in Australia.
The applicant also submitted a Response to Section 57 request for information dated 26 May 2023 (12 paragraphs). The applicant stated, amongst other things, in that Response that she had been assisted by [Mr B’s] migration lawyer in making the protection visa application. This migration agent had earlier assisted [Mr B] in making the Prospective Spouse visa application. She had not discussed her domestic violence experiences fully with this agent as he was a friend of [Mr B]. She no longer uses this migration agent as she has an AVO against [Mr B]. The applicant said that she is not comfortable discussing the domestic violence that she has experienced. She feels ashamed about it. Her Australian husband, [Mr B], met her mother and grandmother in Kazakhstan and they gave their blessing to the forthcoming marriage. She did not introduce [Mr B] to her father.
The interview

Department records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
The delegate’s decision is useful to refer to as the applicant’s claims as at that date are summarised in detail as are the findings made.
The delegate additionally summarised the applicant’s claims as:
·Throughout her childhood, the applicant’s father was often drunk and verbally and physically abusive towards her and her mother. He used his Muslim religion to justify his abuse of her and her mother, saying that the Islam doctrine required women to be obedient and subservient to their husbands and fathers.
·He was extremely unhappy about her first divorce and disapproved of her second relationship with a foreigner.
·The applicant met the Australian man, [Mr B], 8 months after leaving her father’s household, i.e. in May 2017.
·The applicant divorced her second husband, [Mr B], because of domestic violence perpetrated towards the child applicant.
·The applicant suffers from a mental health condition as a result of her history of domestic violence. She fears that her mental health will deteriorate because she will be unable to access medical treatment in Kazakhstan.
·The applicant cannot return to Kazakhstan because she fears serious harm from her father. He is very angry with her because of her divorce and subsequent relationship with a foreigner, of which he did not approve. He will find her and physically harm her and her daughter because he was very unhappy about her first divorce. She will be discriminated against by members of the community as a twice-divorced single mother who married a foreigner.
·She fears gender-based violence in Kazakhstan against her and her daughter.
·The applicant cannot relocate anywhere in Kazakhstan because she has no social support and would be unable to sustain herself and her daughter. She cannot seek protection from the authorities because she does not think the authorities would believe her or take action. The police system in Kazakhstan is corrupt.
Based on supporting evidence provided by the applicant, the delegate accepted that she married her first husband, [Mr A], in Kazakhstan and that they had the applicant child together. The delegate also accepted that she and [Mr A] divorced in September 2015. The delegate accepted that the applicant suffered domestic violence from [Mr A].
Regarding the applicant’s relationship with the Australian man, [Mr B], the delegate noted that the applicant had submitted an Interim Apprehended Domestic Violence Order against [Mr B] dated April 2019. The delegate accepted that they separated in December 2018. However, in the absence of documentary evidence being available at that time, the delegate did not accept that the applicant and [Mr B] had legally married in Australia or that they have legally divorced here. The delegate nonetheless accepted that the applicant would be perceived as a divorced single mother if she returned to Kazakhstan.
The delegate invited the applicant to comment about adverse information about her claims for a protection visa given in her Prospective Spouse visa application. The delegate found her response plausible to be plausible. Specifically, the delegate accepted that a reference to ‘family’ support and ‘blessing’ of her relationship with [Mr B] to be support and blessing from the applicant’s mother and grandmother (not her father). The delegate accepted that the applicant had been raised in an abusive household, and the applicant was estranged from her father. The delegate also accepted that the applicant had met with her father sometime in 2017 prior to travelling to Australia, but her father rejected her new relationship with the Australian, [Mr B].
The delegate accepted that the applicant had sought medical help from her doctor for mental health concerns and that she had received regular counselling sessions. The delegate accepted that the applicant suffered from a mental health condition, namely general anxiety and depression, as noted by her treating mental health social worker.
Amongst other things, the delegate found that the applicant’s personal issues with her father and her mental health issues did not fall under any of the s 5J(1)(a) reasons of race, religion, nationality, membership of a particular social group or political opinion. In regard to discrimination from the community as a divorced single mother, the delegate referred to country information and found that there would be no more than a remote chance that the applicant would face a level of discrimination such that it would amount to serious harm. In regard to gender-based violence, the delegate concluded that the applicant had not articulated a fear of harm from any specific individual on account of her gender, but rather presumably feared harm from society in general as a female. The delegate referred to country information which indicated that violence against women does occur in Kazakhstan. However, there are laws in place to prosecute perpetrators of violence and those laws are enforced in practice. The delegate found that there would be measures in place to protect the applicant from her father. The applicants would be able to access state protection or support services. Given such protections and support services and a personal network available to her, the delegate was satisfied she would not face a real risk of significant harm from her father if she returned to Kazakhstan. The delegate also found that Kazakhstan has general medical and mental health services available and that the applicant would have access to these services. The delegate was therefore not satisfied that the applicant would face a real risk of being subjected to significant harm on account of any medical or mental health issues should she be returned to Kazakhstan. The delegate also found that there were not substantial grounds for believing that as a necessary and foreseeable consequences of being removed to Kazakhstan, there was a real risk that the applicant would suffer significant harm for any of the claimed reasons or because of her circumstances.
In regard to the child applicant, the delegate noted that she would be returning under the care of her parent and the support network of her grandmother and her mother’s extended community. In regard to fear of harm from the child applicant’s grandfather, the delegate did not find any personal dispute her mother had with him fell within the grounds under s 5J(1)(a). The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Kazakhstan, there was a real risk she would suffer significant harm as defined in s 36(2A) of the Act.
The review application
On 30 July 2023, the applicants applied for a review of the delegate’s decision to the Tribunal.
Prior to the hearing, the applicant submitted a statement dated 27 February 2024. Included in the statement were the following:
·The applicant fears persecution because of her membership of a particular social group which is divorced women or single mothers.
·She fears harm from her father in Kazakhstan because he has harmed her before. He’s furious that she has been married twice, including to a foreigner, divorced twice and has a child as a single mother. He is also angry with her because she encouraged her mother to leave her father due to his domestic violence. He believes because of these things that she has brought shame on him given his strict Muslim faith.
·Because of her circumstances set out above, she also fears harm in the form of discrimination and gender-based violence from conservative members of Kazakhstan’s society.
·She was born in [Country 1] while both her parents were there doing compulsory military service. When she was 2 years old she and her parents moved to Almaty, Kazakhstan. She is Kazakh and was raised a Muslim but is now atheist.
·In 2010, she obtained her [Qualification 1] from [University 1] in Almaty, Kazakhstan. In 2016 she obtained her [Qualification 2] from the same university. Most recently, she worked as a [role] at [Business 2] in Kazakhstan.
·She married her first husband, [Mr A], in Kazakhstan in August 2015. She experienced domestic violence in this relationship and divorced him [in] October 2015.
·In September 2017 she came to Australia and married [Mr B], an Australian citizen, in a Muslim leader’s house, according to Islamic custom. She returned to Kazakhstan and [Mr B] applied for a Prospective Spouse visa so that she and her daughter could move to Australia and live with [Mr B] permanently.
·The applicants arrived in Australia [in] August 2018. The applicant’s marriage to [Mr B] was registered in December 2018. Due to domestic violence against her and her daughter, the applicant separated from [Mr B] later in December 2018 and moved into the home of his parents. [Mr B] resided in a granny flat at the same address. They were divorced in August 2020.
·In Australia she has been working as a [role] and prior to that as a [related role] at a Sydney [business 3].
Kazakhstan
·From the time that the applicant was 8 years old, her father was physically abusive to her, finding any reason to pick fault with her. He was very controlling, violent, erratic and unpredictable with sudden outbursts of anger and rage. He would refuse to discuss these incidents later. When the applicant came to her mother’s defence, he was violent towards them both. He was controlling and demanded that the applicant respect his rules about everything.
·She is aware that her father was imprisoned for violent behaviour before he married her mother. He frequently lost jobs in [his] industry because he would fight with customers or colleagues. She remembers him returning from work with ripped clothing and covered with bruises and blood.
·In later years, before the applicant left Kazakhstan, her father became obsessed with his Muslim faith. He became a conservative Shia and extremely rigid in his views about women. This conversion represents a huge turnaround in his life as he previously drank alcohol and did not pray. He expected the applicant and her mother to follow his strict adherence and to behave, dress and pray in a more orthodox way. When they refused, he became violent.
·Her father would show up at her mother’s workplace to check on her. He didn’t like her working as [an occupation 3] as he lost control over her. The applicant fears that her father would also do this to her, were she to return to Kazakhstan.
·The applicant tolerated her father’s behaviour until she was [age] and returned to live at home with her daughter. At this time her father was still beating her mother regularly. The applicant did not want her child to be exposed to this violence or be a victim to it. She encouraged her mother to leave, and on one particularly violent occasion they fled all together to her grandmother’s house.
·Her father found out where they were staying and began stalking them. He tried to intimidate them by buzzing the intercom and breathing heavily into it. Her mother will never return to live with him. Her father blames the applicant for her mother leaving. He thinks the applicant has caused shame on the family.
·Her mother lives in constant fear of her ex-husband. He still turns up at the door and knocks and wants to be let in. Sometimes her mother stays at friends’ places. He still feels the need to control her life. Even though they divorced a long time ago, her mother lives in fear of him.
·The applicant fears that if she returns to Kazakhstan she will be subject to serious harm by her father. He still thinks that he is the head of the family. When he is in a rage he is very strong and angry. He is only [age] years old and able to come after her if she returns to Kazakhstan. He becomes enraged. He is mentally unstable.
·The applicant has had no contact with him since 2018 because she blocked him on the phone and on social media. This made him very angry. He has repeatedly asks the applicant’s mother where she is living. He believes that she should have stayed in her first marriage, despite the violence. To him there is shame in leaving the marriage. He is more concerned about the shame that he believes she has brought to the family than her safety.
·The applicant cannot relocate to another area of Kazakhstan as she will have no social support and her father will find her wherever she is. There are no male relatives who can protect her. Her uncle (her mother’s brother) drove them to her grandmother’s home to escape the violence, but this uncle has a [medical conditions] and is not able to help the applicant. He is not physically able to protect her.
·The applicant is afraid that she and her daughter can’t be protected by anyone, including the police because the police system in Kazakhstan is corrupt and doesn’t assist victims of domestic violence. It is well known throughout Kazakhstan that women do not go to the police if they have domestic violence issues. If she had blood and broken bones, they might assist her, but she would not be able to report about domestic violence because the police consider it to be a private issue and do not interfere. She does not want her daughter to be exposed to domestic violence, particularly as there are no systems in place to protect her.
·Official news sources in Kazakhstan don’t convey the actual situation for domestic violence victims. There are many social media sites (e.g. nemolchi.kz, meaning don’t stay silent) where people who have been failed by the police system in Kazakhstan report instances of abuse and videos of injuries that they have sustained. The applicant attached some of these social media posts.
·In addition to the violence that she will experience from her father, the applicant also fears that she will be ostracised and face discrimination as a divorced woman and for having married a foreign person. Culturally, it is expected that she would marry someone with her own ethnicity. In Kazakhstan, men can marry outside their ethnicity and effectively ‘convert’ the woman to their own ethnicity. But as a woman, she would be seen as betraying her people. When her Australian husband visited Kazakhstan in 2017, strangers who saw that he was a foreigner would say to her: ‘why do you bring shame on your people and your family? Find a Kazakh man. Shame on you.’
·As a result of the abuse from her father, the applicant experiences depression and anxiety. She has been able to receive treatment for this in Australia, but she would not be able to continue to do so if she was to return to Kazakhstan.
The applicant attached a copy of the Australian marriage certificate[5] and divorce certificate[6] (in regard to [Mr B]). She also attached a copy of the Provisional Apprehended Violence Order dated March 2019 which also sets out the grounds for the Application.
[5] Registered December 2018.
[6] August 2020.
The applicant attached social media accounts and news reports about the death of Saltanat Nukenova, an ex-minister’s wife who died following a domestic violence assault.
The applicant’s representative sent the following to the Tribunal:
·An updated statement from the applicant’s mother dated 11 June 2024, detailing continuing violence from her former husband in 2023 and 2024. Although she had left to live in another city away from him (Astana) she had to return in November 2020 to look after her ageing mother ([age] years old) and brother, who has a severe [medical condition]. Her former husband continues to try and contact her on the phone. She was married to him for 27 years and he was abusive throughout their marriage. The police did not help her despite her reporting him. She, the applicants and her mother ran away from the family home after a violent attack in September 2016 and she filed for divorce in March 2017. Her former husband has prevented her from starting a new relationship with another man by threats of violence. In July 2023, her former husband tried to force her into his car when she was returning from work. In October 2023, he tried to contact her by phone demanding that she return to him. In May 2024 he came to her home and dragged her to his car. He beat her, demanding that she give him the applicant’s (new) phone number.
·A letter from [Psychologist A], psychologist, dated 17 June 2024. He noted that the applicant had been referred to him by her GP, [Doctor A], under a mental health treatment plan for assistance with anxiety and depression. The applicant has attended 3 psychology appointments to date. The applicant reports multiple symptoms of anxiety and depression, including low mood, reduced energy, difficulty with focus/concentration and sleep disturbance. The applicant reports symptoms of post-traumatic stress resulting from her childhood with an abusive and violent father and also previous relationships with an abusive partner. She still experiences nightmares and flashbacks of these events.
·Detailed submissions dated 18 June 2024, including a timeline of claimed events and specific references to statements and other evidence supporting those claimed events. The representative noted the applicant’s profile as a Kazakh, twice‑divorced single mother who has witnessed and experienced repeated and severe family violence perpetrated by her father against both her mother and her, as well as in her own 2 marriages.
The representative also submitted a statutory declaration made by the applicant on 18 June 2024. The applicant claims to be a member of a particular social group, being divorced women and single mothers who have repeatedly suffered domestic violence.
The hearing
A hearing that was scheduled for 10 April 2024 was rescheduled at the applicant’s request. The applicant appeared before the Tribunal on 26 June 2024 to give evidence and present arguments, with no interpreter requested or required. The applicant’s mother also gave evidence from [Country 2] where she is currently staying, with the assistance of an interpreter in the Russian language. Where relevant, the applicant’s oral evidence and that of her mother at the hearing is referred to in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.
I have considered the applicant’s evidence throughout the process, including all her detailed statements and oral evidence at the hearing, supported by the evidence of her mother. I find the applicant’s claims to be credible and reliable.
I note that the applicant makes no claims of fearing future harm from her former husband, [Mr A], who lives in Kazakhstan (or from her Australian former husband, [Mr B]). I also note that the applicant confirmed during the hearing that her father has not to date physically hurt her child. However, I accept her claim that she fears that he may do so in the future when she is older.
I accept that the applicant was an only child who grew up enveloped by severe family violence perpetrated against her mother and herself by her father. I accept that while her mother faced more severe physical violence while the applicant was a child, the applicant felt very guilty about not protecting her mother. From the time the applicant was 8 years old and started to protect her mother from his violence, her father also turned his violence to her. I accept the applicant’s oral evidence that he rages and loses control in his anger. I accept that he threw things around the house, broke things and hit out with his hands or anything that was around. He was also verbally abusive. Sometimes he would scream at them for hours before starting the violence. The beatings that the applicant and her mother experienced were always done privately. They knew they would start because her father locked the doors, closed the windows and drew the curtains. The applicant’s father was frequently drunk and was verbally abusive to the applicant and her mother. The applicant’s father could not hold down a regular job and would often come home with blood and torn clothing from fights he had been in. I accept the applicant’s oral evidence that her father was also physically violent with her grandparents when they were trying to protect the applicant and her mother.
I accept that the applicant’s father would become fixated on various issues. For example, he would not eat for days on end, or he would only eat sprouting seeds for weeks. His rages were unpredictable but usually started with verbal ranting. The applicant and her mother were ashamed of the violence perpetrated against them and hid it from others. For example, the applicant wore ‘turtleneck’ jumpers to hide the bruises when she was outside the house.
I accept that when the applicant was [age range] her father became a devout Shia adherent, gave up drinking and that he has maintained his faith. I accept that he became convinced that the applicant and her mother should follow his beliefs; for example, he became very controlling about what the applicant wore out of the house.
I also accept that with this family violence experience, the applicant married twice[7], once to a Kazakhstani man and once to an Australian man. Both marriages lasted only a matter of months and ended in divorce.[8] The applicant left both marriages because of family violence.
[7] August 2015 in Kazakhstan and December 2018 in Australia.
[8] October 2015 in Kazakhstan and August 2020 in Australia.
Particularly severe family violence happened after the applicant had returned to the family home after leaving her first husband. The applicant’s father was very angry with her for leaving the violent situation and with her mother for being a bad mother in allowing her daughter to do this. I accept the applicant’s oral evidence that she had the child applicant in a sling on her body and was terrified that her father would kill her baby while she was trying to protect her mother from his physical violence. I accept that the applicants and the mother fled to the grandmother’s house where they all shared one bedroom.
I accept that the applicant married her second Australian husband through love but also through an idea to escape the violence of her father and her fear that he would hurt her and her child.
I accept that the applicant’s father threatened her in June 2018 when he found out that she was leaving for Australia with a ‘foreigner’ and that he told her that he would make sure that she regretted it if she ever returned to Kazakhstan. I accept that the applicant’s father made repeated attempts to contact the applicant through social media and that she blocked him each time. I accept that he is motivated, at least in part, to keep in contact with his only grandchild and to ensure she is brought up the way he believes she should be.
I accept that the applicant’s father came to know that the applicant had separated from her Australian husband and became very angry. He accuses her of being a bad person and a bad mother. He wants access to his grandchild. He has made repeated attempts in 2022, 2023 and 2024 in attacking the applicant’s mother to find out the applicant’s phone number and access details.
I accept that the applicant’s father is now [age] years old and I accept the applicant’s oral evidence that he is still strong. I accept that he lives at an unknown address in Almaty and her mother lives with the applicant’s elderly grandmother also in Almaty. I also accept that the applicant’s mother lives in fear of her former husband, who continues at regular intervals to stalk and physically attack her, sometimes to try and get further information about the applicant’s contact details.
I accept that the applicant is extremely fearful of her father and fears for the safety of her daughter as well. I accept the evidence that the applicant suffers from depression and anxiety, and her oral evidence that in her depression she closes down and finds it difficult to plan and act. I accept that this condition would hinder her ability to protect herself and her daughter if she was to return to Kazakhstan. I accept that her father is capable and motivated to inflict violence on her because he is very angry that she has married and divorced twice (including to a foreigner) and because she does not live in the way he thinks she should according to religious and societal custom. I accept that he thinks she is a bad mother and was a bad wife. I accept the applicant’s oral evidence that her father wants his grandchild to be brought up according to religious customs he accepts.
The country information sources I have consulted show that gender-based violence (GBV) is a very serious problem in Kazakhstan that particularly affects women victims.[9] Women in Kazakhstan face high rates of domestic abuse. According to the Ministry of Internal Affairs, 2023 saw authorities receive 99,026 applications about ‘family scandals’. In 2022 there were 115,526 similar complaints[10]
[9] ‘Freedom in the World 2023 – Kazakhstan’, Freedom House, 09 March 2023, p.15, 20230310160432; ‘Kazakhstan: Revise Draft Laws to Better Protect Women’, Human Rights Watch (HRW), 07 March 2023, 20230308083616.
[10] ‘Семейно-бытовое насилие в Казахстане: с какими сложностями сталкивается полиция’, Kazinform News Agency, 11 April 2024, 20240618114824; Google translations can often be poor and can contain errors; as such they give only a rough indication of the contents of a document. For any further reliance on information translated via Google Translate, a professional translation should be obtained. Translated version is located at CISNET reference: ‘Domestic violence in Kazakhstan: what difficulties do the police face?’, Kazinform News Agency, 11 April 2024, 20240618114532.
The 2023 country report on Human Rights Practices by the United States Department of State provides the following information regarding discrimination and societal abuse against women, including the startling observation that between 70–90% of cases go unreported:
On June 30, President Tokayev stated publicly that more than 300 murders were committed in two and a half years because of domestic violence. Media cited government sources and statistics in reporting that domestic violence led to the deaths of 93 women identified in the first nine months of 2022, and 18 deaths in the first six months of the year. Media further cited government sources in reporting that 70 to 90 percent of domestic violence cases were not reported to authorities.[11]
[11] ‘Country Reports on Human Rights Practices for 2023 – Kazakhstan’, United States Department of State, 22 April 2024, p. 42, 20240424155144.
In 2023, a very public display of domestic violence resulted in the death of Saltanat Nukenova, whose husband served as Minister of National Economy under former President Nazarbayev. This led to legislative amendments aimed at curbing domestic violence issues. However, Human Rights Watch (HRW) noted while a new law[12] came into effect on 15 April 2024 it again failed to explicitly make domestic violence a stand-alone offence in the criminal code or elsewhere.[13]
[12] The new law introduces amendments to Kazakhstan’s Criminal Code, Law on the Prevention of Domestic Violence, Law on Marriage and Family and other laws.
[13] ‘Kazakhstan: New Law to Protect Women Improved, but Incomplete’, Human Rights Watch (HRW), 23 April 2024, 20240618115608.
Non-profit organisation representative Elena Shvestova noted social and cultural issues with the new legislation, stating in an interview with Eurasianet[14] that ‘women experience pressure from relatives who, as a rule, do not want to wash their dirty laundry in public’; she further stated ‘[m]any victims don’t even know their rights.’[15]
[14] EurasiaNet is an independent news organisation that covers news from and about the South Caucasus and Central Asia. URL: accessed on 18 June 2024.
[15] ‘Kazakhstan toughens domestic violence laws’, Almaz Kumenov, EurasiaNet, 17 April 2024, 20240618120746.
In a 2019 statement, HRW provided the following information regarding domestic violence:
Human Rights Watch found that police officers and staff at both state and nongovernmental crisis centers did not receive adequate training to respond effectively to survivors of domestic violence. Domestic violence is still perceived by many as a “family matter”, and not all cases come to the attention of law enforcement agencies. Women’s rights activists, lawyers, aid workers and survivors of violence themselves have consistently noted that societal stereotypes prevent women from reporting bullying to anyone outside the family, including their own relatives. Also, another factor that keeps a woman in cruel and dangerous relationships is the state policy aimed at “preserving the institution of the family.”[16]
[16] ‘Kazakhstan: Insufficient Assistance for Survivors of Domestic Violence’, Human Rights Watch (HRW), 17 October 2019, 20240618133407.
Violence against women by someone other than an intimate partner is also prevalent in Kazakhstan. The United Nations Entity for Gender Equality and the Empowerment of Women (also known as UN Women) reported the following in a 2017 study on violence against women in Kazakhstan:
In addition to partner violence, the study also collected data on physical and sexual abuse against women by perpetrators, male and female, other than an intimate partner…
The most commonly mentioned perpetrators of physical violence were the respondents’ male family members and male friends, and also male strangers.[17]
[17] ‘Sample Survey on Violence Against Women in Kazakhstan’, UN Women, 2017, p. 17, 20240618141008.
The UN Women study found the most common perpetrators of economic abuse were the respondents’ father and that fathers were also responsible for 50% of reported physical violence against women.[18]
[18] ‘Sample Survey on Violence Against Women in Kazakhstan’, UN Women, 2017, p. 74, 20240618141008.
HRW provided the following information in a 2019 report with regards to societal perceptions of domestic violence, providing one example of a divorced woman:
Stereotypical perceptions of women’s subordination in marriage and fear of stigmatization prevent women from reporting domestic violence and turning to support organizations. Several women who have tried to escape from violent relationships have told Human Rights Watch that their own relatives or their husband’s relatives have urged them to return to their families and to reconcile with their aggressors…
According to Elina Enikeeva, an additional factor that keeps a woman in a forced marriage is persistent stereotypes about her role in the family and the importance of preserving the family at all costs: “Often [a woman’s] relatives do not accept her back... [They think] it’s a disgrace, it’s spoiled.”[19]
Several other survivors of domestic violence told Human Rights Watch that even after leaving an abusive husband or divorce, the ex-spouse/partner continued to believe that he had rights to them, including the right to violence.
[19] ‘Kazakhstan: Insufficient Assistance for Survivors of Domestic Violence’, Human Rights Watch (HRW), 17 October 2019, 20240618133407.
I find that if the applicant were to return to Almaty, where her mother, grandmother and father live, there is a real chance that she would be subjected to serious harm at the hands of her father. The protection and support that has been provided to the applicant in Australia does not apply in Kazakhstan.
Given all the above, I find that there is a real chance that the applicant would be subjected to serious harm at the hands of her father in Kazakhstan, including threats to her life or liberty and significant physical harassment.
The question before me is whether there is a real chance of serious harm to the applicant if she was to return to Kazakhstan in the reasonably foreseeable future. According to the National Domestic and Family Violence Bench Book family violence is a complex pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. While family violence often takes place between intimate partners, it is now widely acknowledged that it also occurs between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. It is also widely acknowledged that women are significantly more likely than men to experience family violence.[20]
[20] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au).
I find that the nature of the harm that will be inflicted on the applicant by her father and the violent, abusive and degrading behaviour that she has experienced from him and will be subjected to by him fall within the definition of family violence and the harm is gender-based. I find that the nature of the violence directed at the applicant by him was gendered and that gender was the essential and significant reason for the harm.
As already mentioned, GBV is pervasive and prevalent throughout Kazakhstan, with the most common types being domestic violence. A June 2022 UN News article provides the following information on domestic violence legislation:
According to official statistics, one in three women has experienced domestic violence at some point in their lives”, said the Deputy UN chief, opening a meeting with representatives of civil society organizations involved in the Spotlight initiative, a joint UN-European Union program to combat gender violence…
There are legislative gaps which mean, for example, that a woman who accuses her husband of beating her, must provide the court with a doctor’s certificate, that her injuries had forced her to spend at least 21 days hospitalized…
The Deputy Secretary-General expressed that view that in such cases, NGOs should work closely with lawyers, parliamentarians, and others, to change or amend existing laws and change the balance of power.[21]
[21] ‘Kazakhstan: ‘Only together’ can ‘silent pandemic’ of gender-based violence be overcome, says Deputy UN chief’, UN News, 09 June 2022, 20230330153406.
Country information indicates that attitudes in Kazakhstan are influenced by traditional and religious norms and societal expectations. The cultural norms in Kazakhstan dictate how women may experience violence and how they may react to it. The society’s entrenched patriarchy[22] plays a significant role in perpetrating GBV.
[22] ‘Online Temptations: Divorce and Extramarital Affairs in Kazakhstan’, 18 August 2021, by Jasmin Dall’Agnola and Hélène Thibault.
On the basis of the evidence before me, I find that the essential and significant reason for the harm that will be directed at the applicant is her gender and her membership of the particular social group of divorced women in Kazakhstan.
Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country. I have already found that the applicant’s father has been violent, abusive and threatening towards the applicant. I have accepted the evidence that he continues to stalk, threaten and hurt the applicant’s mother to find out more information about the applicant. He was able to locate the applicant’s mother when she moved to a faraway city. I am satisfied that the applicant’s father has the necessary level of motivation and resources to travel to, locate and access the applicant in other areas of Kazakhstan. I find that the real chance of persecution relates to all areas of Kazakhstan.
I have also considered whether effective protection measures are available to the applicant in Kazakhstan, under s 5LA. The country information before me clearly indicates that, despite some recent reform, existing laws in Kazakhstan do not provide adequate protection for victims of GBV. In December 2021 Human Rights Watch stated:
Domestic violence is a very serious problem in Kazakhstan. Hundreds of women annually flee abusive partners, husbands, or other family members and seek help and refuge at the limited number of crisis centers and shelters throughout the country, some operated by the government and others by nongovernmental groups. The government’s weak response to family abuse has left women with little realistic or meaningful recourse to justice. Police and judges fail to respond adequately to allegations of domestic violence and on the rare occasions when cases go to court, the penalties for abusers are inadequate. A lack of professionally trained social workers, psychologists, and lawyers is also a key barrier to securing protection.[23]
[23] ‘Kazakhstan: Protect Women’s Rights’, Human Rights Watch, 10 December 2021, 20211213115418.
In view of the evidence before me, I am not satisfied that effective protection measures are available to the applicant in Kazakhstan by the Kazakhstani State. I am not satisfied that the State or any party or organisation in Kazakhstan is able to offer accessible and durable protection against the persecution feared by the applicant, consisting of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

For the above reasons, I find that if the applicant were to be removed to Kazakhstan, there is a real chance that she would face threats to her life or liberty, significant physical harassment and significant ill-treatment at the hands of her father. I am satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I am satisfied that the real chance of persecution relates to all areas of Kazakhstan. I am satisfied that the essential and significant reason for her fear of persecution is her membership of the particular social group of divorced women in Kazakhstan. I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country. Section 36(3) therefore does not apply.
Given these findings it is not necessary for me to consider the other claims for protection raised by the applicant, including that she will be discriminated against as a divorced, Kazakh woman who married a foreigner or that she would not be able to access treatment for mental illness. Similarly, it is not necessary for me to consider the child applicant’s independent claims for protection.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the child applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Phillippa Wearne
Member

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

[2024] AATA 3513

2 July 2024

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