2402448 (Refugee)

2402448 (Refugee) [2024] AATA 3676 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Checker James McCarthy
CASE NUMBER: 2402448

COUNTRY OF REFERENCE: Kenya
MEMBER:Kate Millar
DATE:5 June 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 June 2024 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Kenya – Federal Circuit and Family Court remittal – particular social group – bisexual – barriers to accessing healthcare – fear of physical and verbal abuse – criminalisation of homosexuality – state protection – conduct in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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
APPLICATION FOR REVIEW

[The applicant] is a citizen of Kenya who came to Australia on a student visa in December 2018. His student visa was cancelled in September 2021 due to his criminal convictions.
On 3 December 2021, [the applicant] applied for a protection visa on the basis that he fears harm if returned to Kenya because he is bisexual.
His application was refused by a delegate of the Minister as the delegate did not consider [the applicant] was bisexual. This matter has been before the Tribunal on two previous occasions, and the decision was affirmed on each occasion. It has twice been remitted by the Federal Circuit and Family Court of Australia for reconsideration, and this is the further reconsideration of this decision.
[The applicant] has been in immigration detention since his release from prison in December 2021, and his matter has been given priority both as it has been remitted by the Court and because he is in detention.
[The applicant] appeared before the Tribunal on 15 May 2024, and was represented by Legal Aid NSW. He relied on the statements and submissions provided with his application and for the previous two hearings.
BACKGROUND
[The applicant] was born in [Town 1] in Kenya, where he also completed secondary school. He then studied [subject 1] and was employed by [Employer 1] in [a related field] and, after completing his certificate in [subject 1], at [a named college] before being granted a student visa to travel to Australia.
[The applicant’s] father died in 1999 when [the applicant] was approximately [age] years old. His mother remains in [Town 1] where she has a farm and sells items when she can. He has [specified family members]. [Details of family deleted.] He is most frequently in contact with [Brother A] and [one sister], and he speaks to them once or twice a month. He speaks to his mother and siblings every three to six months.
[The applicant] travelled to Australia with his [Relative A] in December 2018. He held a student visa but did not commence his studies. He initially lived with his [Relative B] and [Relative C] in Sydney and then with his girlfriend [Girlfriend A]. He has other [relatives] in Australia including [names].
After being convicted of drink driving offences, [the applicant] was imprisoned from July to December 2021 and his student visa was cancelled. He applied for a protection visa and has been in immigration detention from the time he was released from prison. He was in [Detention Centre 1] from December 2021 until March 2024, and since March 2024 has been in immigration detention in [City 1].
CRITERIA FOR A PROTECTION VISA
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). 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–5LA, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The central factual matter to be decided in this case is whether [the applicant] is bisexual or homosexual or would be perceived to be bisexual or homosexual.
[The applicant] claims that he was first attracted to a man when he was working in Kenya as [an age]-year-old. He did not act on this attraction because he thought these feelings were wrong. At the time he was in a relationship with a woman, but they broke up after he found out she was seeing another man.
After a period of 1–2 years he was again in a relationship with a woman, and they were still together when he came to Australia in 2018. [The applicant] stopped contacting her after his [relative] said she was seeing someone else, and she confirmed this when he confronted her.
On arriving in Australia, he lived with his [Relative B] and [Relative C] in Sydney. He travelled to Melbourne when his course started but only stayed 1–2 weeks as he could not find accommodation and returned to Sydney. He did not commence his studies.
In mid-2019 he moved to [Suburb 1] with [Relative B] and [Relative C]. [Relative B’s] girlfriend moved in with them soon after. He became closer to [Relative B] and claims they started having sex and [Relative B] started sleeping in his room every now and then. They did not discuss this either when it was happening or afterwards. [Relative B’s] relationship with his girlfriend ended in July 2020 and he started dating another girl. In November 2020, [the applicant] moved out as [Relative B’s] girlfriend had moved in and [the applicant] had started dating [Girlfriend A]. He moved to a house with [Girlfriend A], and claims he moved because he was worried [Relative B’s] new girlfriend or [Girlfriend A] would find out about his relationship with [Relative B].
[Relative B] provided a statement and gave oral evidence at both previous Tribunal hearings. He did not appear before the Tribunal on this occasion. [The applicant] says he last spoke to [Relative B] at the end of 2023 when he was in [Detention Centre 1]. He said there is no reason he hasn’t spoken to [Relative B], but he decided they were not talking, and it just happened that they haven’t spoken. He said it is hard in detention and hard to communicate with other people while he is in detention.
[Relative B’s] statement and oral evidence at the two previous Tribunal hearings included that he had been sexually intimate with [the applicant]. He states this occurred very often, mostly when no-one was home. [Relative B] states at the time his girlfriend was living with them but didn’t know about his sexual relationship with [the applicant] because they were intimate when she was not at home or when she was in the loungeroom watching a movie. He broke up with this girlfriend and started seeing another woman also called [Girlfriend A]. He and [the applicant] continued to be sexually intimate until [the applicant] moved out in October or November 2020. He says his girlfriend did not know he is bisexual. [Relative B] states he secretly dated a couple of men in Kenya but would have gone to jail if he was caught. He states he has not spoken to [the applicant] for a while as he decided it wouldn’t be healthy to speak to him, and he is trying to avoid speaking to him for the sake of his relationship with his girlfriend.
While [the applicant] was living with [Relative B], he met a friend of [Relative B’s] called [Friend A]. [Friend A] would invite him to his house for a drink once or twice a week. [The applicant] says he would drop his girlfriend [Girlfriend A] at work and go to visit [Friend A]. They would drink, play on the PlayStation, cook and have sex. This continued until he was taken into custody in 2021.
[Friend A] provided a statement and gave evidence at the two previous Tribunal hearings. He did not attend this hearing. [Friend A] states he is bisexual and met [the applicant] through [Relative B]. In late 2020 he and [the applicant] started dating and would hang out at [Friend A’s] place. They did not go out much together because of stigma. They dated for about a year until [the applicant] was taken into custody. [Friend A] knew [the applicant] was also dating [Girlfriend A] and that she did not know [the applicant] is attracted to men. [Friend A] states he remains in contact with [the applicant], but did not speak to him much when he was in prison. He states he would like to continue dating [the applicant] if he is released from detention.
[The applicant] also provided his health records from the time he was in immigration detention. This includes a record of consulting a doctor about genital discomfort. The notes of the doctor from August 2022 state he reported engaging in receptive anal sex in December 2021 and queries if this could be the cause of his anal pain. The notes of the doctor record that [the applicant] last had anal intercourse approximately a year prior to November 2022. His mental health records include a note from a counsellor, also in November 2022, that they continued to “workaround his identification of being LGBTQI+” and “strategies to look at how he could start talking to his family about this”.
The report of a telephone consultation with a psychologist in June 2022 records that [the applicant] does not speak to his brother about his sexuality because it is hard to explain, he fears he may be considered a bad person, and because he “fears attack”. He is reported to be focused on fears of deportation and difficulties of openness around sexuality.
[The applicant’s] oral evidence was hesitant, and it was difficult to elicit information from him. When invited to tell the Tribunal about the relationships he has had in Australia, he said he has been in a relationship with [Relative B], with [Girlfriend A] and with [Friend A]. He described two other sexual encounters with men; one with a person in jail and one while he was in immigration detention but said these were not relationships but came about by being caught up in the moment. He describes his sexual orientation as bisexual but finding more satisfaction and comfort in relationships with men.
He said his first relationship with a man was with [Relative B], and he felt excited, and good for once in his life. He said he felt happy, confident and satisfied. He did not tell anyone about how he felt or the relationship because the only people he could tell were his other [relatives] and there would be tension about him dating [one relative] because in his family you do not date [relatives].
In his relationship with [Friend A] he said he was feeling good and happy and satisfied. He said the only people he could have told about this feeling was [Girlfriend A] ([Relative B’s] girlfriend) or [Relative C], and he could not tell [Girlfriend A] because she is in a relationship with [Relative B]. He did not want to speak to [Relative B] in case he was jealous.
[The applicant] said that his brother [Brother A] is now aware of his sexuality. While it took considerable effort to elicit the information on how [Brother A] became aware of his sexuality, this appeared to be because [the applicant] took a rather indirect route to discussing his sexuality with his brother. He said he started by sending him a link to content about men’s fashion which his brother did not like and taking the opportunity to talk to his brother about people liking different things, saying that you only have one life and should do what you want to do. He said he was trying to let [Brother A] know who he was and how he wanted to live his life. At first [Brother A] was negative but they had a conversation in the end about how he likes men and how he is satisfied when he is intimate with a man.
He said he told his ex-girlfriend [Girlfriend A] about his sexuality before she came to visit him in [Detention Centre 1], and after he told her she did not visit him and asked for a break from the relationship.
[Relative B’s] girlfriend [Girlfriend A] confronted him to ask him if [Relative B] was gay. He said at this point he decided to tell her that he was gay too. He said they sometimes made jokes that the reason they were together and never had sex was because he is gay. After this discussion, she was satisfied with his explanation and started visiting him in [Detention Centre 1].
[The applicant] could identify some current issues in the LGBTQI+ community in Australia and described his involvement in online groups. He described an event in Kenya where an online content creator passed away a few months ago and the cause of death was not clear. He said the content creator was called “Brian” and he created TikTok content showing him talking back when people harassed him for being gay. He was arrested and put in jail for a few days.
After the hearing, [the applicant] provided screen shots of content about Brian Chira. He also provided screen shots of “gaysydneynews.”
Country information supports that Brian Chira was a content creator who is reported to have confronted stigma associated with HIV/AIDS. His sexuality is reported as ambiguous, and he died in March 2024 after being hit by a truck which did not stop.[1] This country information is broadly consistent with [the applicant’s] evidence at the hearing.
[1] ‘Kenyans Mourn Popular Tiktoker Brian Chira - KenyanVibe, Brian Chira: TikTok star's funeral left Kenyans shocked’ (bbc.com)
[The applicant’s] claims that he is attracted to men and is bisexual have been corroborated by two witnesses at two previous hearings. He has consulted a doctor while in immigration detention about concerns relating to anal intercourse and has discussed his sexuality and how to talk to his family about it with a counsellor.
While there are strong driving factors for [the applicant] to remain in Australia, I am satisfied that [the applicant] is bisexual as he claims.
I am further satisfied that he is a member of a particular social group of people who are bisexual.
Is there a real risk [the applicant] would suffer serious harm if returned to Kenya?
The US Department of State reports widespread non-state actor violence towards LGBTQI+ individuals, and reports police failed to prevent harassment of LGBTQI+ individuals during protests. It was reported that some elected politicians and religious leaders incited violence and harassment of LGBTQI+ individuals in public statements and on social media.[2]
[2] Kenya - United States Department of State
Section 162 of the Kenyan Penal Code[3] criminalises carnal knowledge against the order of nature and creates a criminal offence if a person permits a male person to have carnal knowledge of him or her against the order of nature. Section 163 criminalises an attempt to commit unnatural offences and section 165 criminalises indecent practices between males.
[3] CAP. 63 (kenyalaw.org)
Amnesty International, in its report “We are facing Extinction: Escalating Anti-LGBT Sentiment, the Weaponization of Law and their Human Rights Implications in Select African Countries”[4] reports a 2019 attempt to challenge the criminalisation of homosexuality before the High Court of Kenya was unsuccessful, and it was found that these provisions are consistent with the Constitution of Kenya.[5]
[4] Africa: ‘We are facing extinction: Escalating anti-LGBTI sentiment, the weaponization of law and their human rights implications in select African countries’, Amnesty International
[5] P. 25
In February 2023, the Supreme Court of Kenya declared that the National Gay and Lesbian Human Rights Commission has the right to be registered as an NGO. This is reported as having created a complex and volatile environment, with the unintended consequences of amplifying anti-LGBTI rhetoric, with reports of political figures offered to pay people to attack members of the community in response to the judgment.[6] Together with an online campaign (#SayNotoLGBTQ) Amnesty reports that office and health facilities providing support to the LGBTQI+ community had to shut down due to the intensified hostility.[7]
[6] P. 26
[7] Ibid
Reflecting the current hostility to the LGBTQI+ community, a draft Family Protection Bill submitted in April 2023 proposes measures including limiting rights of the LGBTQI+ community to assembly, privacy and access to sexual and reproductive health information. It proposes the death penalty for sexual acts with a person of the same sex.[8]
[8] Ibid, p 2728; LGBT rights in Africa: Will Kenya be the latest to pass anti-gay law? (bbc.com)
Demonstrations against the ruling of the Supreme Court to allow LGBTQ rights of association are reported by Associated Press, who also report that the LBGTQ community in Kenya “is often targeted by homophobic people, including in cases of physical or verbal abuse.”[9]
[9] Muslims in Kenya protest at Supreme Court over its endorsement of LGBTQ right to associate | AP News

In contrast, Amnesty also reports that Kenya is the only country in the East Horn of Africa that offers asylum to people who seek protection because of their sexual orientation.[10]
[10] Ibid
[The applicant] expressed a fear that he would be unable to access healthcare to a similar standard to other people if he returned to Kenya. He did not claim that he would not be provided with any health services but said that the services provided may give incorrect advice or treatment. The organisation aidsmap report difficulties of gay and bisexual men in accessing health services in Kenya,[11] and I accept that [the applicant] would face barriers to accessing healthcare in Kenya.
[11] ‘“I would rather die”: Kenyan gay and bisexual men’s experiences seeking healthcare’ | aidsmap
I am satisfied that if he returns to Kenya, [the applicant] faces a real chance of serious harm in the form of significant physical ill-treatment or harassment if arrested from crimes, or from the general community given the current anti-LGBTQI+ sentiment in Kenya which includes physical and verbal abuse.
Does this apply to all areas of Kenya?
As at least part of the real chance of harm is from people with anti-LGBTQI+ views and from the police, the real chance of serious harm applied to all parts of Kenya.
Conduct in Australia
Section 5J(6) of the Act requires that in determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person engaged in the conduct other than for the purpose of strengthening the person’s claim to be a refugee.
[The applicant] states his sexual relationships with men have all occurred in Australia. I consider this was part of the development of his identity as a bisexual or homosexual man, and that it was other than for the purpose of strengthening his claim to be a refugee.
Effective protection
The US Department of State 2023 Country Reports on Human Rights Practices regarding Kenya states police use general public order laws to arrest or harass LGBTQI+ individuals, and frequently harass, intimidate or physically abuse LGBTQI+ individuals in custody. They also report police threatened gay men in custody with forced anal examination, a discredited practice that was outlawed in 2018.[12]
[12] Kenya - United States Department of State
Amnesty provided two case examples of women who are lesbian being refused police protection, with one woman being told to find her rapists and bring them to the police station to be arrested, and another reporting that the police took no action following her report that she was hit by a stone and a stick.
I am not satisfied that [the applicant] could obtain effective protection if he were to return to Kenya.
Modification of behaviour
[The applicant] cannot be required to modify his behaviour to alter or conceal his sexual orientation under s 5J(3)(c)(vi) of the Act.
Safe third country
There is no information to show that [the applicant] has a right to enter or reside in another country.
CONCLUSION
For the reasons given above, I am satisfied [the applicant] is a member of a particular social group of men who are bisexual. He is outside his country of origin and fears being persecuted because of his membership of this social group. This reason would be the essential or significant reason for the persecution and involves systematic and discriminatory conduct towards him because he is bisexual. I am satisfied that the conduct towards him if he were to return to Kenya involves serious harm in the form of significant physical ill-treatment or harassment. There is a real chance that if he returned to Kenya he would be persecuted for this reason. Effective protection measures are not available to him, and he does not have the right to enter and reside in another country.
As a result, [the applicant] is a refugee as defined in s 5H of the Act and meets the requirements in s 36(2)(a) of the Act for the grant of the visa, and the appropriate course is to remit the matter to the Minister for further consideration.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Kate Millar
Senior 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 3676

5 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction