2405910 (Refugee)

2405910 (Refugee) [2024] AATA 4459 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2405910
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rebecca Lee
DATE:9 October 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 October 2024 at 5:03pm
CATCHWORDS
REFUGEE – protection visa – Egypt – membership of particular social groups – bisexual man – abused, assaulted and ridiculed – gradual process of identity and expression – relationships with men and women, two marriages to women, and Australian citizen children – obesity – liability for mandatory military service, postponed to study in Australia – delay in applying for protection visa – student visa cancelled, previous protection visa application refused, bridging visa cancelled and two applications for partner visa made – inconsistent claims and evidence, and relevant information not declared – criminal conviction and imprisonment – mental health – ex-wife/children’s mother’s physical health condition – activities for purposes of strengthening claim – country information – cultural pressure, harassment, violence and prosecution – real chance of serious harm applies to all areas of country – modification of behaviour excluded – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (3), (6), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1992) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] April 2007, departed [in] June 2007 and subsequently arrived on [Day 1] July 2007 as the holder of a Subclass TU-572 visa (which was cancelled on 26 February 2008) and has not departed since.[1]
[1] Movement check. Note the protection visa application (page 10) says [Day 2] July 2007. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision, given the applicant in their written submission of 29 April 2024 submitted they preferred the pronoun ‘they’.
The applicant, who claims to be a citizen of Egypt, applied for a Class XA (Subclass 866) Protection visa for a second time on 29 October 2023.
The applicant provided the Tribunal with a copy of the delegate’s decision in this matter. The delegate did not accept that the applicant was bisexual as claimed; found the conscript evading punishment in Egypt a law of general application; found the possibility of the applicant being targeted because of the leaked details two years ago as a returned failed asylum seeker very remote and far-fetched; and that the stigma due to being obese and the unlikely scenario of the applicant serving time in prison for evading conscription did not amount to serious harm.
The applicant appeared before the Tribunal on 29 April 2024 in person and on 14 June 2024 by video link to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]; [Mr B]; [Mr C] and [Mr D] on 14 June 2024 by video link. The first Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. At the election of the applicant, the second Tribunal hearing was not.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CLAIMS AND EVIDENCE
First Application for a Protection Visa
The applicant first made an application for a protection visa on 6 April 2009, with the assistance of an agent, after their student visa had been cancelled on 26 February 2008.
The April 2009 application form stated that the applicant should tell the Department everything about why the applicant thought they were a refugee. In signing the application, the applicant declared that the information they had supplied was complete, correct and up to date in every detail and that they understood that if they had given false or misleading information, the application may be refused, and any visa cancelled.
In the first protection visa application, the applicant claimed that they worked as a part-time [occupation 1] in the family business, after completing only one year at [Subject] School, and sought protection because:
(a)the applicant was sexually abused up until the age of thirteen, by a man with whom they used to regularly stay from the age of five to be taught the Koran;
(b)at the age of fifteen or sixteen, the applicant realised that they blocked out any sexual thoughts and they had no attraction to females like their peers had;
(c)the applicant met a man named [Mr E] in their last year of preparatory school, and they had a sexual relationship until the applicant commenced university and the man moved away;
(d)the applicant had a few causal partners, mainly tourists, and then in 2006 met another man named [Mr E] who lived in a nearby suburb and with whom the applicant was found in a sexual embrace by their brother;
(e)after arriving in Australia, the applicant found their way to Oxford Street and met some people;
(f)due to family pressure, the applicant returned to Egypt and made up a story to their family to get out of an arranged marriage;
(g)the applicant returned to Australia and returned to meeting men causally, because their English was not good enough to establish a relationship;
(h)in December 2007, the applicant met an Egyptian student named [Mr F], commencing a relationship on New Year’s Eve, and subsequently living together until February 2009;
(i)[Mr F] is bisexual but the applicant is homosexual.
The applicant was interviewed on 26 June 2009, in which, according to the delegate’s decision, the applicant said they had married a woman in [Month, Year], and they no longer feared returning to Egypt.
The April 2009 application was refused on 8 July 2009. In the decision, the delegate accepted that the applicant was a homosexual when they last resided in Egypt and that the applicant may face societal and familial disapproval as a homosexual person, but refused the application on the basis that the applicant could avail themselves of state protection if they feared for their life. The delegate also noted that the applicant had married a female Australian citizen, and so given their change in circumstances and claims the delegate did not find that the applicant had a profile which would attract adverse attention, should they return to Egypt.
Cancellation of Bridging Visa
On 4 May 2015 the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
On 1 May 2015, the applicant had appeared by video link before that Tribunal. For the purposes of this review, the Tribunal has listened to the recording of that hearing.
In the Tribunal’s decision on 4 May 2015,[2] the Tribunal noted, with respect accurately, in relation to the applicant that:
When asked by the Tribunal if his protection claims were true, he indicated that he had falsely claimed to be a homosexual. He added that he had also unsuccessfully applied for another Protection visa on the basis that he did not want to return to Egypt because he did not wish to serve in the army.
[2] [Reference] Decision made 4 May 2015 at [15].
The Tribunal notes that in the delegate’s decision of 21 March 2024, only two applications for a protection visa are listed in summary of the applicant’s migration history, being the one in April 2009 and the one in October 2023, being the subject of that delegate’s decision. There were two prior applications for a partner visa.
In relation to the partner visa applications, the former Tribunal noted in its decision at [15]:
The applicant conceded that he had entered into a relationship with [his now wife] while his application for review in relation to his first Partner visa was being considered by the previously constituted Tribunal.
The former Tribunal found that at [25]:
The applicant has shown a disregard for the laws of Australia and the Tribunal considers this to be relevant to this decision. The Tribunal has also placed weight on the applicant’s unsatisfactory immigration history. As already noted, he conceded at the hearing that he has dealt dishonestly with the department in the past in order to achieve favourable immigration outcomes.
In relation to the applicant’s work history in Australia, the Tribunal noted in its decision at [16]:
The applicant stated that he resided in Sydney until 2008. He then moved to Perth and in 2011 relocated to [Town], where he was residing until he was detained on 17 February 2015. In Perth, he worked as [occupations 2 and 3]. After moving to [Town], he started [doing job task 4]. He stopped [doing job task 4] in May 2014 and, after a period of unemployment, in November 2014, began working as [an occupation 5] at [Employer].
Current Application for a Protection Visa
Before the Department
According to information contained in their protection visa application made in October 2023, the applicant is a [Age]-year-old Egyptian citizen who was born in Behera, Egypt. Further, the applicant:
·belongs to the Arabic ethnic group, was born to Egyptian citizens and is of the Islamic religion;
·            was divorced;
·has members of the same family unit in or outside Australia, being [ages and gender children], both Australian-born to the applicant’s Australian-born former wife, but was otherwise not in contact with relatives;
·from birth until [April] 2007, lived in Behera, Al Buhayrah, Egypt;
·from [April] 2007 to 17 February 2015, lived in [Town] in the State of Western Australia;
·from 17 February 2015 to the date of the protection visa application, lived in a detention centre in Western Australia;
·failed an English course at a college/vocational school May 2007 but did not provide details of any other education;
·had never been employed;
·obtained their Egyptian Passport [in] 2006 (which expired [in] 2016);
·            can speak, read, and write in both the Arabic and English languages;
·            had not undertaken any overseas travel in the last 30 years;
·            was aware of being the subject of a criminal investigation;
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they deserted their military service obligations and left Egypt because people accused the applicant of being gay. The applicant was serving their compulsory military service, but due to being obese they were not physically fit to serve and consequently whipped, and people insinuated their weakness was because they were gay. People did not like associating with the applicant anymore and they kept the kids away from the applicant. Further, being in Australia would ensure fair treatment of the applicant when they needed medical assistance, whereas in Egypt the applicant would face stigma for their size.
Upon returning to Egypt, the applicant thinks that they will be court-martialled without legal counsel and be immediately imprisoned. Further, they said that they would be stoned due to Shariah law and public ridicule. Then they said that they would be killed, flogged, and suffer public shame.
Under the heading ‘character declarations’ in the protection visa application, the applicant declared that they had not been convicted of an offence in any country, nor been the subject of a domestic violence family violence order, nor been charged with any offence that was currently awaiting legal action and that they had not overstayed a visa in any country, including Australia.
The applicant also declared that they had not undergone any military training nor served in any military force but stated that as soon as they arrive back in Egypt they will be apprehended and taken into military custody because they had been conscripted but had deserted.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 30 October 2023, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising how the applicant provide any additional information they would like to be considered to the Department.
On 3 November 2023, the applicant was sent correspondence advising that more information was needed to assess the protection visa application. First, the applicant was invited to provide any information about why so much time had passed between the applicant arriving in Australia and lodging the protection visa application, being some 16 years, which length of time raised concerns about the genuineness of the claims.
Secondly, it was noted that the applicant did not provide any evidence in support of their claims of being harassed in Egypt’s due to perceived homosexuality and being overweight, and the lack of detail or evidence about the claims, such as dates and locations, also raised concerns about the genuineness of the applicant’s claims. The delegate invited the applicant to provide more information and documentary evidence in support of the claims.
The Department received the following information or documentary evidence from the applicant:
(a)“Egypt puts 17 men on trial on suspicion of homosexual behaviour”, AFP, 2 October 2017, referring in part to at least six people being arrested after they held the rainbow flag representing LGBTI people at a concert. The crimes alleged were ‘debauchery’ and ‘incitement to debauchery’;
(b)“Egypt to conduct anal exams on men suspected of being gay: Amnesty”, MEE, 30 October 2017, saying six Egyptian men arrested for ‘promoting sexual deviancy’ and ‘debauchery’ on social media will be subjected to annual examinations ahead of their 1 October trial;
(c)“Egypt: Circumstances under which evading military service or being a conscientious objector would be considered an act of political opposition by the authorities; consequences for the evader or conscientious objector (2016-August 2018)” Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 17 August 2022;
(d)“Egypt’s army: The conscripts who refuse to serve”, MEE correspondent, 28 November 2016;
(e)Birth certificates for the applicant’s [children] in which the applicant is listed as self-employed/[occupation 4] and the parents said to have been married on [Date];
(f)Unsigned letter said to be from the applicant’s former wife to the Minister dated 29 August 2023, in which she stated:
My ex-husband… and I have had a complicated history. Our cultural differences often posed challenges, but for a significant portion of our marriage, we managed to find happiness and harmony. Unfortunately, our differences occasionally led to arguments, and on one unfortunate occasion, things escalated to a physical confrontation. In my distress, I contacted the authorities, which ultimately resulted in [the applicant] 's apprehension and subsequent incarceration.
…the cancellation of [his] partner visa. … I have shouldered the responsibility of caring for our two beautiful children …I have come to accept his apology… and I genuinely believe that we deserve an opportunity to rebuild our lives together.
… I have been diagnosed with [Medical condition], a debilitating condition that has left me physically and mentally strained.
… Reuniting our family would provide the emotional and financial support that I desperately need as I navigate my health challenges and the responsibilities of raising our children.
(g)Photographs of the applicant and presumably their ex-wife and their children;
(h)Letter from the applicant to the Minister dated 6 November 2023, in which the applicant claimed he was a bisexual man, and growing up in Egypt, they faced immense challenges due to their sexual orientation. They fled to Egypt to escape persecution and find a safe haven for themselves and their family. The applicant also wrote:
I faced the prospect of mandatory military conscription in Egypt, a situation I could not bear due to my physical incapacity and fear of persecution based on my sexual orientation. If I were to return to Egypt, I would face arrest, forced military service, and the risk of further persecution. Moreover, with the ongoing war in Sudan and unrest in the Gaza Strip, the situation in the region has become increasingly volatile, posing additional threats to my safety.
… My wife, [Ms G], is currently suffering from [Medical condition], a debilitating condition that requires extensive care and support. Her health is rapidly deteriorating, and she relies on my presence and assistance. Returning to Egypt would not only endanger my life but also separate my [children] from their mother, exacerbating the already challenging circumstances they face.
…Growing up in Egypt was tough for me. I was always a fat kid and I struggled with physique all my life. I was bullied for my fatness and struggled with mental health. Egypt is an ultraconservative country, and they don’t take it lightly on members of the LGBT family. As a bi-sexual man. I struggled with identity and acceptance. I sought refuge from my own people.
… The is mandatory military conscription in Egypt and I was supposed to serve in the military as well. I was physically incapable, and I was scared that I would be found out about my fondness for men as well. This has been a burden all my life, having to carry this secret and shadow it to my family except for my mother.
Since I deserted the army. I would be arrested and taken into the military academy upon my arrival. I would have no way out than to serve a minimum of three years. I am obese and having to run those military drills and staying in the closet at the same time is not going to be good for me.
…With the current war in Sudan and the unrest in Gaza. There is a big chance this could spill into Egypt, and this would mean the government has already started aggressive army recruitment and this would put me in the crosshairs.
…Her unfortunate diagnosis of [a] gene, bearing the potential for [Medical condition], has left her vulnerable, mentally, and physically. The inevitability of her condition's progression, as witnessed through her mother's suffering, instils within me an overwhelming desire to alleviate her pain and support our children.
(i)Statutory declaration by the applicant on 22 November 2023, in which the applicant claims they are facing imminent danger if compelled to return to Egypt due to their sexuality and evasion of forced mandatory military conscription and data breach in Christmas Island immigration detention centre which exposed the applicant’s immigration paperwork including their previous protection visa application.
The applicant stated they had completed schooling up to the equivalent of second year [Subject] school, and the mother was the first to notice the applicant’s feminine side, and when she broke the news to the applicant’s father the applicant’s father did not take the news very well. It was the applicant’s mother who insisted that the applicant leave Egypt since they were not going to be able to sustain the rigorous training due to their obesity and feminine nature.
The applicant was 20 when they realised that they were gender fluid, and they are attracted to both men and women. After the neighbours saw the applicant with his male sexual partner, the applicant’s family sacrificed their life savings to send the applicant to Australia to study.
Attached was a 19 April 2022 notice that some of the applicant’s personal information was inadvertently publicly accessible for approximately 24 hours, from around 2:30pm on 7 April 2022 to around 3pm on 8 April 2022 on the Australian Parliament House website, at which time it was removed. Information that was published and could possibly have been accessed about the applicant was their name, their period of detention, their immigration history, as well as information pertaining to their criminal offences, protection claims and medical history.
The applicant claimed that the LEAKED/linked immigration history has further jeopardised the applicant safety, making a return to Egypt an untenable risk.
Protection visa application interview

On 5 December 2023, the Department interviewed the applicant by video conference, during which the delegate reminded the applicant to provide complete and accurate claims for protection as soon as possible and asked that any further information in support of their claims be provided during the interview and advised that they may not have another chance to provide such further information if their protection visa application was refused.
The applicant gave the following evidence.
The applicant has [a brother and sister]. Their father was [an occupation 6] in [a workplace]. The applicant last spoke with their family in Egypt before they entered the detention centre. They had been imprisoned and did not want to talk to anybody. The applicant had worked in Egypt to support their family as [occupations 2 and 4].
The applicant finished secondary studies and completed two years at [subject] school. They had a relationship in Egypt at the age of eighteen with their friend [Mr H], who was two years older than the applicant. The applicant resided next to the beach, and they would go there every day. [Mr H] was walking by the applicant on the beach, the applicant had seen him before and they chatted for first time.
[Mr H] offered the applicant money to sleep with the applicant. The applicant thought they would try and did. Things went well. They enjoyed the relationship, but that type of relationship was prohibited in Egypt. The applicant had only had one relationship before [Mr H], being with their mother’s friend, a divorced neighbour, but they enjoyed the [Mr H] relationship more, it continued on with the applicant no longer accepting money from [Mr H]. Before [Mr H], the applicant was not aware of their sexual orientation.
Towards the end, when the applicant was 18, they discussed their sexual orientation with their mother, and their mother starting gradually telling their father. Their father was angry, causing the applicant to run away for a while, but then the father calmed down. The applicant did not tell their friends, because of the shame and because it is unaccepted in society.
People started having a suspicion about their relationship with [Mr H] and started swearing at them, mock them. The applicant has no physical evidence of the relationship because they used to be together in secret. They have not maintained contact. The applicant did not receive adverse treatment from their family or physical abuse. It was more that they were forsaken by society, as people did not wish to speak with them or have their children around them. The family thought the applicant had brought shame to the family because of this difference.
The applicant was about 19 when they left Egypt. Their army conscription was postponed until they finished studying at university. To obtain a passport, the applicant needed a letter from the army that they had an exemption until they finished their studies. The applicant’s passport was therefore issued for only six months, and they renewed it twice. It has now expired. A person needs to provide documents to prove they are studying at university to obtain any further postponements. The applicant arrived in Australia in April 2007 when their period of study of law at an Egyptian university was still running.
When the applicant was asked if they received a certificate that their army conscription had been postponed until a certain date, the applicant stated that it was written on their passport. A person needs to either to provide a paper stating that they have completed their service or have an exemption before any government documents are issued.
The applicant is currently [Age] years of age. When the country information was raised, that final exemptions from military service are granted when an individual turns 30 years old, the applicant said they would still be conscripted because the country and the region are not stable, so in case of war the military will still take the applicant. The applicant will need to attend military court, which will decide the matter. The applicant asserted that people they know over 30 were still being asked in Egypt to join the army and someone was imprisoned before doing three years in the army. When asked how wars in Sudan or Gaza would threaten the applicant’s safety, the applicant said that if they returned to Egypt, they will be conscripted into the army because they speak English.
In Australia, the applicant has had many short-term sexual relationships with men and two marriages to women. The applicant met their same-sex partners in gay clubs and other places. When further specifics were requested, the applicant could not recall the names of any club, perhaps they could recall a street location. After what happened in Egypt the applicant does not want a long-term relationship with a man. The applicant said they are bisexual.
The applicant was in Sydney for one year. They then moved to Perth and for the last five years in [Town]. They met same sex partners in Perth and [Town] at the shopping centres where they worked, in the city, neighbours.
The applicant’s first marriage lasted one year before they divorced, because they did not get along. They had been living with a friend, and they married their friend’s wife’s friend. The applicant did not tell either wife about their sexual orientation or gay desires, given what had happened in Egypt with [Mr H]. They do what they do secretly, and they are comfortable with that.
The applicant met their second wife at a shopping centre where they both worked. She has [Medical condition]. They have two children. The couple divorced in 2019 because the applicant had been imprisoned for three years, and the wife said she wished to pursue her own life. The applicant was sentenced to one year and four months for intent to supply cannabis. In February 2015 they were in the detention centre, then the applicant was imprisoned, and then moved back to the detention centre, where they remain. The applicant has not been imprisoned for any other reasons.
The applicant has been overweight since a child, resulting in bullying. They will be unable to complete military exercises. Their mother supported the applicant and the applicant’s children from Egypt, paying the applicant’s lawyer’s fees and the applicant’s children’s expenses.
When the applicant was asked to list all the reasons they cannot go back to Egypt, the applicant said first and most importantly, the applicant’s children. Secondly, the applicant’s ex-wife has [Medical condition]’s Disease, and as the disease progresses it may not allow her to take care of the children. The father needs to provide support such as taking care of the children. If the applicant took the [children] to Egypt, it is not a good environment in which to grow up, because of the health system and the education system so it would be unfair on the [children].
Next, at the airport, the applicant will be arrested because of the army conscription. They will be taken to military court, and the court may decide to sentence to them prison, join the army or do both. Then children would have no father or mother. The applicant is scared for their children because they have been in the detention centre for nine years. Lastly, the applicant asked for freedom to practice their sexual orientation/identity.
The applicant was given three working days in which they may provide further information or evidence to the delegate. Nothing further was provided to the delegate after the interview.
Before the Tribunal
The review application
On 23 March 2024, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 25 March 2024, the Tribunal wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as possible.
Nothing further was received from the applicant in response.
On 18 April 2024, the Tribunal sent the applicant an invitation to attend a hearing.
On 23 April 2024, the applicant requested an adjournment of the hearing to get some more documents. The Tribunal refused this request the same day because the applicant did not provide details of the kinds of documents they were seeking to provide, nor any proposed timetable in which to provide them.
On 25 April 2024, the applicant again requested an adjournment of the hearing to provide further statements and information that directly addressed some of the delegate’s findings.
On 26 April 2024, the Tribunal refused this request but advised that the hearing on 29 April would be treated as an initial hearing, with the applicant able to explain to the Tribunal what further statements and information they were seeking, and the length of time required to obtain them. If required, the Member would consider adjourning the matter to a second hearing to allow the applicant to obtain further information within a reasonable period.
Further on 27 April 2024, the applicant again requested that the hearing be postponed, referring to mental health issues and saying that they had made an FOI request to obtain a copy of the complete files of their previous visa applications and most importantly an audio of the protection visa interview recording, so that the applicant could prepare a detailed statement for the Tribunal in respect of their claims and their fears of returning to Egypt. The applicant also advised that they intended to provide statements from people with whom they had been in a same sex relationship in the past. This request was not seen by the Tribunal before the hearing on 29 April 2024.
The applicant also provided various reports and articles on the LGBT situation in Egypt, such as Egypt 2022 and 2023 Human Rights Reports from the USA Department of State, Bureau of Democracy, Human Rights and Labor; Human Rights Watch Egypt Events of 2022; a 1 October 2020 Human Rights Watch article ‘Egypt: Security Forces Abuse, Torture LGBT People’; Human Dignity Trust report on Egypt; an Equaldex report on LGBT rights in Egypt; a 31 January 2023 BBC article ‘How Egyptian police hunt LGBT people on dating apps’; The New Arab and a 9 October 2017 article from unknown source; a 1 October 2020 Washington Post article; a 21 January 2019 CNN article; and a 2 February 202 PinkNews article.
On 28 April 2024, the applicant provided to the Tribunal letters of support in English from [Mr C], said to be the applicant’s partner and [Mr D], said to be a former sexual partner, both in Immigration Detention.
On 29 April 2024, the applicant provided to the Tribunal an unsigned letter of support in English from [Mr B], in immigration detention, dated 20 April 2024, in which the author claimed to be the applicant’s partner, and saying ‘[f]orcing us to be separated would not only cause immense emotional distress but also disrupt our future plans and aspirations’. This was seen but not read by the Tribunal before the 29 April 2024 hearing.
Further, on 29 April 2024 the applicant provided a statement in which they claimed to fear serious harm because of their bisexuality and because of their gender fluidity, although they also stated this was not an exhaustive statement of the reasons why they could not return to their country of origin. This was seen by the Tribunal at the beginning of the 29 April 2024 hearing but not read. The applicant claimed:
I strongly refute the DHA's claims. My relationship with partners are genuine and long-standing. We have included demonstrate our commitment.
Regarding my sexual orientation, the provided evidence clearly demonstrates the dangers faced by LGBTQ+ individuals in Egypt. My fear of persecution is real and well-founded.
Forcing me to return to Egypt would have a devastating impact on my children's well-being. They are both Australian citizens and have established their lives here. Uprooting them from their home, school, and friends would be extremely detrimental to their emotional and social development.
I fear persecution in Egypt due to my sexual orientation. I have built a strong and secure life in Australia with my partner and children. Returning to Egypt would not only endanger me but would also cause significant harm to my children.
As to their gender, the applicant wrote that their understanding of their own sexual orientation is evolving over time and that:
I was assigned male at birth and identify as a bisexual person who is often more attracted to men. My gender identity is fluid and I prefer the pronouns they. I am writing to provide further information regarding my sexuality as part of my protection visa application. As a gender fluid individual, my sexuality is a fundamental aspect of my identity and lived experience. Gender fluidity refers to the concept that one's gender identity can vary over time, and may not fit within traditional binary categories of male or female. Similarly, my sexuality is fluid and may encompass attraction to individuals across the gender spectrum.
Further, the applicant wrote that they:
(a)began realising that they were attracted to boys in their class when they started high school. They were not allowed to join the soccer team at school because other children knew they were different;
(b)people assumed the applicant was gay because they were a little bit feminine and was ‘with him’ all the time (without specifying who he was);
(c)the applicant was physically assaulted by a fellow student, being slapped, and punched such that the applicant was left with a black eye and bruises, and was told by this student to wake up which the applicant assumed meant they had to change their sexuality;
(d)the applicant had told their mother about the attack and how they were different, and she needed to accept it. She did not like it but mostly did not give the applicant any problems about it. But it was the applicant’s extended family, including their aunties and uncles that were giving them more problems, but the applicant was hoping they would leave them alone; and
(e)the applicant refers to partying and having sex with someone but does not specify who and says they have also been using LGBTQ+ dating apps ‘[App 1]’ and ‘[App 2]’ since moving to Australia. The applicant had these on their previous phone and since losing this phone they do not have evidence of this. The applicant is currently in a relationship, and so does not need to engage online.
The 29 April hearing: supporting documents and oral evidence
On 29 April 2024, the applicant gave the following oral evidence at the hearing.
The applicant is trying to get further witness statements in support and agreed to provide a completed hearing information form before the next hearing.
The applicant said they prepared the protection visa application themselves, with the assistance of a friend in detention to write in proper English. The applicant said this was their second protection visa application. The first one was prepared by the applicant’s lawyer after receiving information from the applicant.
The two applications for a partner visa application, with the first one being prepared by a lawyer and the second by the applicant’s second ex-wife.
The applicant is [Age] years of age, and Muslim. Their parents are still alive and together, living in Rashid. The applicant has [a brother and a sister], both married and in Egypt. The applicant is in contact with their mother, though not often because of the situation in which the applicant finds themselves. Their father was [an occupation 6] in [a workplace].
The applicant studied [subject] for almost two years at University in Alexandria, commencing at the age of 17 in [Year] doing well in the first year. The applicant did not complete the second year in [Year] because the applicant was a little bit messed up with their situation in Egypt and they decided to leave the country and come to Australia for freedom and a better life. By coming to Australia, the applicant left home and at the time was 19.
The applicant obtained their first Egyptian passport in [2006], which was valid for six months or one year due to Egyptian conscription, in order to travel to Australia. As yet the applicant has not been asked to serve in the Egyptian army. The applicant expected to be conscripted once they had completed or stopped their studies. The Egyptian authorities issue certificates confirming if people have served or not yet served in the army, which people need to obtain or renew their Egyptian ID cards, which are valid for one to three years.
The applicant obtained their first ID card when they were 16, which was valid for three years and noted that the applicant was a student. The applicant remembers their teacher taking the school class to the police station to obtain their first ID card. To obtain or renew an ID card, if a person is still a student, the police need to see the person’s student ID and receipt of payment for the study. The applicant said they were required to serve in the army from the age of 21. If the person is over 21, which the authorities can tell from the person’s birth certificate, the person will also need the service certificate.
The applicant does not remember if they ever renewed their Egyptian ID card but does not think so. They have lost the ID card they had. They have never served in the Egyptian army.
The applicant has worked in Egypt, starting at the age of 7 or 8. They have assisted their mother with her [occupation 2] job. They have been a [occupation 7], [an occupation 4], [an occupation 8 doing a job task] in their paternal grandfather’s business. The applicant was [a occupation 7] on the Mediterranean Sea for three to four months in 2004, with each trip taking two or three weeks. The applicant was asked by their family to stop because too many people, including the applicant’s friends, died by drowning in this line of work, despite the fact that they enjoyed the work. The applicant then learnt how to drive and became [an occupation 4] with a [vehicle], until they travelled to Australia.
The applicant knew their mother’s younger brother in Sydney, Australia. The uncle was from Rashid originally but had been in Australia ten years before the applicant arrived. The applicant lived with their uncle and his family for two/three weeks maximum. The uncle worked in [work sector]. The applicant then moved to a share house with friends from their school, where they were studying English. The applicant does not remember the institution where they studied, because they did not attend very much because they found it hard. They shared with their friends for one and a half months. The last time the applicant and their uncle spoke was in 2007.
The applicant then returned to Egypt in June 2007, because they were having too many arguments with their uncle. The applicant returned to parents’ place, staying there only three weeks. They could not do anything, and the applicant was stressed as the same problems existed as before and the applicant decided to come back and leave all their problems behind.
The applicant’s problems were about their relationship with [Mr H]. The relationship started a couple of years before they left Egypt. People had started finding out and abusing and harassing the applicant. They had tried to move away but could not survive as all their life they had been living with family. The applicant was scared their father would find out.
The applicant was 16 when they met [Mr H] on the beach of the river Nile. The applicant’s family home was a couple of minutes’ walk from the beach. There he was and he conversed with the applicant, asking them to engage in a sexual relationship for money, about $10. Thinking about it, the applicant accepted the money, enjoyed it and afterwards they decided to see each other again.

The applicant said they had not been attracted to men before that, as they were unaware of such things. It was usually just females. They had had their first sexual relationship at the age of 14, although they were not allowed to have girlfriends. They met girls when the applicant was [doing occupation 8] or [doing occupation 4]. The applicant had attended all-boys schools, whilst the university was mixed. The applicant engaged with people who were hookers, and a few times older women like a friend of their mother’s. Prior to coming to Australia, they could have sexual relationships with boys or girls. The applicant started smoking hash in high school, having a joint a week occasionally.
The applicant and [Mr H] had sexual relationships more than 5 times. They stopped when the relationship was too close to being noticed. [Mr H] was about ten years older than the applicant. The applicant had handed the money back. The applicant had wanted to try the experience and see how they went. People could notice what was happening because it is a small place where they lived and everybody, the families, and siblings, know each other. Whilst millions of people live in Rashid, along the 5kms of coast everybody attends the market or the beach.
In Egypt, the applicant had casual relationships with under five men in addition to [Mr H], whom they met when [occupation 4]. When people started talking, the applicant’s job was gone as people were saying the applicant could not be trusted around women and children. It was not said to the applicant directly, but it had filtered through to them even from the applicant’s closets friends. The applicant said their life became impossible as they lost their connection with everyone, with everyone talking about them, abusing them, stonewalling them. They decided to move.
The applicant told their mother one year before they came to Australia, but never told their mother about her friend. They did not wish to split their relationship. The applicant told their mother that they felt for men more than women, and she reacted very angrily, crying, screaming. The applicant told her that they slept with men, because she was not allowing them to sleep with girls as part of the cultural mores. The applicant acknowledged to the Tribunal that they had been sleeping with girls as well, but the applicant said they had told their mother this because otherwise she would have been even more angry with them, and they were in need of support. The applicant told their mother they liked men, and they were only going to be this way.
The mother calmed down and realised she had to help the applicant and told the uncle that the applicant was out of control, without telling him exactly what the problem was. The applicant returned to Egypt after one and a half months, as the applicant had had enough of the uncle controlling them and telling them what to do. The applicant’s three weeks in Egypt was very hard, as the applicant was ignored by people because of what they knew about them. The applicant did not have any relationships during those three weeks.
The applicant came back to Australia for a new life. They stayed for a week or two in their former house in Sydney, after which they travelled to Perth because a friend of a school friend found them a job [doing occupation 3]. After a week, the applicant moved to [Town] for the same contract from July to August 2007, after which the applicant returned to Perth. The applicant travelled to Sydney to check their visa and college.
From 2009/2010, the applicant had their own subcontract and continued [doing a job task] until 2011. The applicant then moved back to [Town] and obtained [an occupation 4] licence after a month of [doing occupation 3]. They were [an occupation 4] from 2011 to 2014. They stopped when their [occupation 4] licence was cancelled after they were charged and pleaded guilty in February 2014 with assault and intent to supply marijuana. They were sentenced to a six month’s community order, which the applicant breached twice by not attending. Once was because a car which they had bought in Perth to sell in [Town], broke down along the way and the other time was because they forgot. In court, the applicant refused legal aid and the ex-wife wrote a letter to explain what had happened and that applicant was not guilty. With the plea, the judge said he could not do anything, and gave the applicant a six-month term of imprisonment suspended.
The applicant undertook [work sector] jobs and worked for [Employer] [doing job tasks 9 and 10], plus they were leasing their own [vehicle] to someone else, until they were detained on 17 February 2015.
In Australia the second time, the first time the applicant had a relationship was in [Town], with their roommate. This lasted until the applicant left [Town]. A few weeks later the applicant had a one-off casual relationship with a man. The applicant had relationships with men and women they met at the shopping centres. They did not want a relationship with any one person.
In 2009, the applicant was sharing accommodation with an Egyptian friend, his girlfriend, and her children, to split the rent. They had worked together in [occupation 3] in [Town], and they came back to Perth together. The applicant had a casual relationship with [Mr F], not including sex but involving kisses. The friend of the girlfriend visited from Adelaide, and this is how the applicant met their first wife. They married in [Month, Year]. The applicant did not tell the first ex-wife about their past sexual history of sleeping with men because it would be too much of a headache, nor did she know about their protection visa application. They were married for not even two years. The first ex-wife made an application for a partner visa, and the applicant said that even they had forgotten about the protection visa application.
After their divorce, the applicant enjoyed their freedom, and engaged in casual sexual relationships with both men and women. They met their second ex-wife in 2011, married on [Date] and divorced in 2018. The applicant did not tell their second ex-wife about their past sexual history, because they were not planning to have a long-term relationship. After they had met a few times, she was pregnant. The oldest [child] was born in [Month, Year]. They met in [Town], and she moved with the children to Queensland after the applicant was detained in 2015.
When asked if they returned to Egypt, what they feared, the applicant said many things, including death, imprisonment, and being tortured to death in prison but it being called a suicide. When asked why they would be imprisoned, the applicant said they would like to continue doing what they like to do, being exercising their sexuality, being both gay and bisexual, and enjoying what life they have left. The applicant said at the age of [Age] they could not change who they are. The applicant is also concerned about their two [children], with the second ex-wife’s [Medical condition] and not being allowed to drive and is not sure if their two [children] would return to Egypt with them because it would be a different life for the [children].
The applicant also raised the fact that they had not served in the Egyptian army and said they would be either imprisoned or required to serve for three years upon their return to Egypt. The applicant also mentioned the wars in Gaza, Libya, and Sudan. The applicant also raised the data breach, which revealed their first protection visa application in which they had also claimed to be gay. In 2008, the applicant said they did not know the difference between gay and bisexual. The applicant does not have any information if anyone accessed the publicly available information during the breach.
Post the First Hearing
On 20 May 2024, the Tribunal wrote to the applicant and invited them to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review.
On 13 June 2024, the applicant responded in writing.
The first part of the information was set out by the Tribunal as follows:
Previous applications
1.In your Department interview on 26 June 2009, you said that you had married a woman in [Month, Year] and no longer feared returning to Egypt: see Department’s Decision record made 8 July 2009;
2.You made an application for a protection visa on 6 April 2009. By signing the application, you declared that the information you had supplied was complete, correct and up to date in every detail and that you understood that if you had given false or misleading information, the application may be refused, and any visa cancelled.
However, on 1 May 2015, when asked by the Tribunal if your protection claims were true, you indicated that you had falsely claimed to be a homosexual: see [Reference] Decision made 4 May 2015 at [15].
3.At the hearing on 1 May 2015, you conceded that you had entered into a relationship with [your second wife] while your application for review in relation to your first Partner visa was being considered by the previously constituted Tribunal: [Reference] Decision made 4 May 2015 at [15].
4.On 4 May 2015, the Tribunal found that you conceded at the hearing that you had dealt dishonestly with the department in the past in order to achieve favourable immigration outcomes: see [Reference] Decision made 4 May 2015 at [25].
5.In the 6 April 2009 protection visa application, you made no claim to fear returning to Egypt because you would be conscripted into the Egyptian army or fined or jailed because you had not served in the army;
6.At the hearing on 1 May 2015, you said that you had also unsuccessfully applied for another protection visa on the basis that you did not want to return to Egypt because you did not wish to serve in the army: see [Reference] Decision made 4 May 2015 at [15];
This information is relevant because the Tribunal may accept what you said to the Department and the Tribunal that the claim to be a homosexual was false and in 2009 you had no fear returning to Egypt.
Further, the fact you did not raise claims to fear harm on the basis of conscription into the Egyptian army in the context of consideration of your first protection visa application raises concerns regarding the credibility of those claims and may lead the Tribunal not to accept them.
If we rely on this information in making our decision, the Tribunal may find that there is no real chance of harm now or in the reasonably foreseeable future if you return to Egypt because in relation to the claim that you are homosexual, and by extension, bi-sexual, it is false and therefore not accepted and in relation to the claim regarding the Egyptian army, it is not credible and therefore not accepted.
This information is also relevant because the Tribunal may accept that you are willing to deal dishonestly with the department and the Tribunal in order to achieve favourable immigration outcomes. If we rely on this information in making our decision, the Tribunal may find that your any or all of your claims are not genuine or credible.
If the Tribunal accepts this information, it may be the reason or part of the reason for affirming the decision under review.
The applicant responded:
Protection Visa:
Yes, a friend advised me that any unsuccessful protection application would be reported to Egyptian authorities. This is why I stopped pursuing it. I believed that applying for a partner visa would provide the same level of safety.
Claim Authenticity:
Yes, my claim was true.
My full name was disclosed in this AAT case, making it accessible to others.
My second ex-wife handled all my paperwork, so I did not want her to know about my homosexuality. This is why I denied it in this AAT case. I was scared of potential retribution from her that if things went sideways, she was going to out me to my friends, relatives, and the community at large. This would have exacerbated the situation which was already fragile. Living in secrecy is hard and I still have to pretend to be straight in certain situations. There is higher tolerance of the LGBT community is Australia but there is still a cohort who despise people like me.
Clarification:
Yes, this is correct.
Choices and Safety:
I made certain statements to protect myself from Egyptian authorities and to preserve my second marriage and family.
Regarding my first ex-wife, she also handled my paperwork. I hid my sexuality from her as well. After my first partner visa application was refused, I had to tell her the truth, which caused significant problems in our relationship. She eventually moved to Adelaide and divorced me before the tribunal for my first partner visa.
Military Service:
I was a student both in Egypt and Australia, so I was not required to serve in the military until I either finished my studies or was expelled from the university after many years.
Claim Validity:
My claim was not false.
I was concerned about my details being exposed. After many years, there was a data breach while I was in a detention centre awaiting deportation.
Further the next part of the information was set out by the Tribunal as follows:
7.In the 6 April 2009 protection visa application, you claimed that at the age of fifteen or sixteen, you realised that you blocked out any sexual thoughts and you had no attraction to females like your peers had;
8.In the 6 April 2009 protection visa application, you claimed that you met a man named [Mr E] in your last year of preparatory school, and you had a sexual relationship until the applicant commenced university and the man moved away.
9.In the 6 April 2009 protection visa application, you claimed that you had a few causal partners, mainly tourists, and then in 2006 met another man named [Mr F] who lived in a nearby suburb and with whom you were found in a sexual embrace by your brother;
10.In the 6 April 2009 protection visa application, you claimed that in December 2007 you met an Egyptian student named [Mr F], who is bisexual, and commenced a relationship on New Year’s Eve subsequently living together until February 2009;
11.On 5 December 2023, during your interview with the department in relation to your protection visa application dated 29 October 2023, you said that:
·     your first sexual relationship was with a female friend of your mothers and your first homosexual relationship was with a man - named [Mr H] - when you were 18 and which you took up because [Mr H] offered you money. Before you met this man you said you were not aware of your sexual orientation, which is bi-sexual;
·     you were convicted in Australia of drug offences and sentenced to imprisonment for 1 year and 4 months, although in the protection visa application you declared that you have not been convicted of an offence in any country;
·     you have had short-term sexual relationships with men in Australia, and you met them in gay clubs, but you could not remember the names or locations of the clubs. You said that you did not want a long-term relationship with a man;
12.Your immigration history is that:
·     you have made only two applications for a protection visa, one on 6 April 2009 and one on 29 October 2023;
·     you were detained in February 2015 as an overstayer, although in the October 2023 protection visa application you declared that you had not overstayed a visa in any country.
All of the above information is relevant because inconsistencies in the information and evidence you have provided to the Department in previous visa applications and to the Tribunal in previous proceedings and in the application currently before the Tribunal, may lead the Tribunal to doubt the truthfulness of your evidence and your claims regarding claims to fear harm due to your sexual orientation or sexual identity, conscription into the army and the data leak and to consider that your claims lack credibility.
It may also cause the Tribunal not to accept that you have a well-founded fear of persecution if you return to Egypt or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia due to your sexual orientation or sexual identity or for any other of the reasons you have claimed.
If the Tribunal accepts this information, it may be the reason or part of the reason for affirming the decision under review.
The applicant responded:
7-11. Detention and Trauma:
Yes, I have been detained or imprisoned for almost 10 years. I have suffered severe mental health trauma from witnessing deaths, stabbings, and suicides in prison. Despite this, I have not received any treatment.
Everyone has dark periods in their life. I have tried to move on and focus on the future, but living in fear and under constant threat has made it difficult to remember every detail of my past accurately.
Through courses in prison and detention, I have tried to forget the past and look forward to a better future for myself and my children. However, the immigration authorities continually bring up my past, making it challenging to heal and move forward.
11_B. Criminal Conviction:
As far as I remember, I was asked if I had been convicted in any country other than Australia. My criminal record was already known, which is why my visa was cancelled, and my second partner visa was refused on character grounds.
11_C. Relationships:
I mentioned a club in Sydney on Oxford Street. Yes, I have had multiple relationships, similar to others living in a free society. It is my right as a human to explore relationships freely.
Visa and Detention:
Yes, I went to the immigration department in Perth on February 16, 2015. They told me I still had a visa and to return the next day to renew it. On February 17, 2015, I was asked to sign documents to arrange to leave the country. I refused, requested to see the manager, and have been detained since then. There was no arrest or overstay; I went to the immigration office to avoid overstaying.
The applicant requested the Tribunal obtain the hearing record or transcript related to the applicant’s breach of the six-month order. The applicant said they had been unsuccessful themselves, and it would significantly help with their case and their ongoing issues with domestic violence, which have worsened their life, though no particulars were provided. The applicant provided an unsigned undated Magistrates Court form requesting a copy of transcripts of hearings on 14 February 2014 and 7 May 2014. No evidence that the fee had been paid was provided.
The applicant also said in relation to their character references pertaining to their sexuality, the Tribunal was welcome to call any of them or the ones it wishes to talk to. The applicant provided an unsigned statement labelled ‘[Mr A] Translated Version using ChatGPT1’.
The applicant also provided two medical documents of April 2023 and May 2024 in relation to their second wife’s genetically confirmed diagnosis of [Medical condition] with mild to moderate symptoms as of 2 May 2024.
The applicant did not provide a hearing information response form.
The second hearing: supporting documents and oral evidence
[Mr A]
[Mr A], in [Country 1], gave the following oral evidence. He is in [Country 1], close to [City]. He had been in Australia from 2013 on a tourist visa, applied for a protection visa and ultimately chose to return to [Country 1] in 2021. He was in immigration detention for eight years after committing a crime. His oral English is OK and on occasion the telephone connection was bad.
[Mr A] said he spoke with the applicant in the last two weeks, and then wrote a letter in Arabic in support of the applicant. Since he returned to [Country 1], he has spoken with his friend a number of times. He described the applicant as a good man, who missed his children, and he had spent too long in detention. When asked if their friendship extended to having sex, [Mr A] said ‘no way’. When the Tribunal noted that the translated document provided to the Tribunal said he and the applicant engaged in consensual sexual activities, [Mr A] said that the applicant is a gay. When asked if he was a gay, he said both, bisexual. They did not have sex, they were close friends. The applicant said they did not have proper sex, but it was mostly kissing. When asked in what ways they physically touched each other, he said they went close but did not have sex. [Mr A] said they kissed and kind of held hands, but no more than that.
[Mr B], [Mr C], and [Mr D]

100. [Mr B], [Mr C], and [Mr D] were in immigration detention and appeared by video link with the applicant. They gave the following evidence separately.
101. [Mr D] is from [Country 2] and spoke in English. He had typed a letter himself in support of the applicant in English. He said the applicant had told him there were doubts about his sexuality. [Mr D] came to detention in December 2016, and met the applicant in 2017. They had a sexual relationship for a month until [Mr D] went to Christmas Island, then the applicant was sent to Christmas Island and they both stayed in the same compound, and they resumed their relationship. It was short lived. The applicant was being chased by other gay men, and [Mr D] did not wish to get involved. He described the applicant as the female in the relationship and there was both oral and anal sex. He understood why the applicant had tried to keep this topic quiet, as from their continent it was a sensitive issue.
102. [Mr C] typed a letter in English in support of the applicant’s application. He is from [Country 3]. He has no protection visa application, having arrived in Australia on a student visa, which was cancelled and then reinstated. He had been on a permanent partner visa, which had been cancelled due to his crime. He met the applicant over a year ago. They have been in a sexual relationship for a year. They like each other, and they spend time together, watching movies and with intimate time, including sex. They cuddle and they make love about once a week. The applicant is a very nice person with a lovely heart, and he wants to be part of his children’s lives. It is unrealistic to say what will happen in the future between the two of them, but he really likes the applicant, they have a genuine connection, and he wants to continue the relationship.
103. [Mr B] prepared a letter in English in support of the applicant with a friend three months ago. He is from [Country 3] and can read English. He has been in a number of detention centres. He thought he had signed the letter. They have known each other since 2019 from Christmas Island detention centre. They have had a relationship, like girlfriend/boyfriend, involving sex whenever they need, once a week. He said he was not shy and has been in detention a long time. He arrived by boat to Australia in 2013. They will continue their relationship if they get out of detention together.
The Applicant
104. The applicant continued their evidence as follows.
105. When asked why the witnesses’ evidence was not before the delegate, the applicant said they were not aware of the procedure and what they needed to do. They realised they had to get letters in support from the notification of refusal. When the protection visa application form, the October 2023 and November 2023 letters referred to above and the applicant’s response were mentioned, the applicant said they did not provide evidence from these four witnesses as they were not aware of the exact evidence needed to support the application.
106. The 6 November letter and 23 November statutory declaration do not refer to the applicant’s sexual history in immigration detention because the applicant was not thinking that was needed, until the protection visa application was refused, nor did they know if the witnesses would agree to provide statements. At the delegate’s interview, the questions were very open ended and so the applicant was confused at the interview. When asked why they did not provide any further evidence after the delegate’s interview, the applicant said they were waiting for the delegate to contact them, which did not occur. The applicant did not understand what the delegate needed.
107. When the Tribunal said there is nothing before it to suggest that anyone accessed the website when data was made publicly available, including the applicant’s first protection visa application, the applicant said they did not know and that it was only up to now. The applicant said they were not a violent person.
108. When the Tribunal raised the fact that unlike what was written in the protection visa application, the applicant agreed they were not forced to join the army, but they said this was written because of their poor English. Given the application raised obesity, the applicant said they now weighed more, about 126kgs. The applicant said in Egypt if people did not have money for health services, then they die, though the availability of heath services applied to all Egyptians.
109. When the Tribunal raised that the protection visa application said the applicant was harmed in Egypt and they got whipped, the applicant said they got slapped or whipped by police officers, once from a coffee shop, once when they were stopped in a car. The applicant said they were whipped in a coffee shop because they were too young to have ID and because of their size looked older than they were. They were taken to a police station, where they were beaten and whipped, until someone with ID could come and take them home. It took the applicant a while in Australia to not run away when they saw police. The applicant said they blanked that experience, and the delegate did not ask them about it. This is a difficult process. The applicant thanked the Tribunal for the 20 May 2024 letter.
110. In the first protection visa application, the applicant mentioned a relationship with a man named [Mr E]. When the Tribunal noted that [Mr E] had not been mentioned before the delegate or the Tribunal, the applicant said mentioning one example should be enough, especially when they were recalling matters from the darkest time of their life.
111. The applicant said they had trauma, which they had tried to bury but it kept being brought back up. When the Tribunal mentioned its concerns about the inconsistencies, including their first realisation of their attraction to men; their first sexual experiences and their fears, the applicant said they had had an opportunity to lodge a fresh new protection visa application due to the privacy breach, and as to their first experiences it was a long time ago plus they had spent a long time in detention or imprisonment.
112. In response to the 20 May 2024 letter, the applicant had said a friend told them that protection visa applications were referred to the Egyptian authorities. The applicant said they meant that they did not continue the application they made to the AAT after it was refused by the delegate. The applicant said they cannot communicate or explain themselves properly in interviews, and wondered why the delegate did not ask for a medical test to determine their sexual orientation.
113. The applicant disclosed that they had been sexually assaulted several times, from a young age of about 4 or 5 years. The Tribunal referred to the first protection visa application, in which the applicant had said they had been assaulted by someone teaching them the Koran. The applicant said it had happened before and after that, until they were about 10 or 11, and there was nobody they could tell. If their father knew, they would have been killed. The assaults caused them pain and to bleed. They could not report the assaults to the police, otherwise they would have been punished.
114. The Tribunal referred to the hearing in May 2015 in relation to the cancellation of their visa. There was nobody with them when they appeared by video link. The applicant said they had spent two months in detention, when they were given a bridging visa and on the same day it was cancelled. The applicant said their second ex-wife had handled their paperwork and she was not aware of the applicant’s sexuality. The applicant remembered that their first ex-wife was not aware at the start, but when the first partner applicant was refused for not having a genuine relationship, the reason was mentioned and the first ex-wife read it. The applicant had no chance to explain to her. After she found out, their life became miserable, and it was the main reason they divorced. For the next wife, there was no way the applicant was going to tell her. When she read the decision, the applicant explained that it was not true. They are now divorced, due to the time the applicant has spent in detention. If they were married, then the applicant was advised they did not need a protection visa, a partner visa would protect the applicant from having to return to Egypt.
115. The applicant said they did not overstay a visa as it was valid until February 2016, and when they attended the Immigration Department to extend, they were told they could have another bridging visa, but they ended up in detention.
Country information
116. In 'Egypt: COI Compilation', Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), July 2024, 20240729114830 pp73-75, it is stated:
Amnesty International reports in April 2024 that “authorities continued to harass and prosecute individuals on the basis of their actual or perceived sexual orientation or gender identity” (Amnesty International, 24 April 2024). Authorities did not use antidiscrimination laws to protect LGBTI individuals and the USDOS reports “widespread public support for discrimination against the LGBTQI+ community” (USDOS, 23 April 2024, section 6).
Sources further note that same-sex sexual activity is not explicitly prohibited (Freedom House, 2024, section F4; BAMF, 30 June 2023, p. 3) or criminalized by law (USDOS, 23 April 2024, section 6; ILGA World, undated). However, Act No. 10 of 1961 on combating prostitution is used to prosecute individuals for their sexual orientation or gender identity (ILGA World, undated; UN Human Rights Committee, 14 April 2023, p. 2; CFJ et al., 30 January 2023, p. 7; HRW, February 2023, p. 16). According to Freedom House and the USDOS, authorities regularly arrest people suspected of same-sex sexual conduct under charges of prostitution or “debauchery” (Freedom House, 2024, section F4) and “violating family values”, for which sentences of up to 10 years imprisonment and/or fines are foreseen by the law (USDOS, 23 April 2024, section 6). Amnesty International notes in August 2023 that LGBTI individuals and activists are consistently targeted by authorities “through arbitrary arrests and prosecution for their real or perceived sexual orientation on charges of ‘habitual debauchery’, a term used to criminalize consensual same-sex sexual relations between adults and penalize those engaging in such activity” (Amnesty International, 14 August 2023, p. 7). According to reports of a local human rights group, charges were brought against over 50 defendants in a minimum of eight debauchery cases during 2023 (USDOS, 23 April 2024, section 6). Furthermore, prosecutions also occur for “misuse of social media”. The USDOS notes that this results in “de facto criminalization of same sex conduct and identity” (USDOS, 23 April 2024, section 6). The International Lesbian Gay Bisexual Trans and Intersex Association (ILGA World) notes in an entry on its website, last updated in June 2023, that Article 25 of the Anti-Cybercrimes Law (Law No. 175 of 2018) is used to target LGBTI individuals and activists, “as per this provision ‘anyone who publishes online content that threatens society’s and family’s values shall be punished for at least six months of prison and a fine of at least fifty thousand pounds’” (ILGA World, updated 30 June 2023).
In April 2024, the Hong Kong Dignity Institute, an NGO based in Hong Kong which assists refugees, survivors of human trafficking and victims of forced marriage, notes: “In addition to prosecutions under the Prostitution Law, there has also been an uptick in recent years in the use of cybercrime and telecommunication laws to prosecute LGBTQ+ cases. This trend can be interpreted as a response to the digitization of daily lives, and in particular the use of online dating apps by members of the LGBTQ+ communities. Furthermore, cases involving cybercrimes and telecommunication laws are tried in Egyptian economic courts, which are specialized courts generally focused on resolving economic and commercial disputes. In practice, this has allowed Egyptian prosecutors to pursue harsher sentences against the LGBTQ+ community. […] Although the Telecommunication Regulation Law and Anti-Cybercrimes Law are targeted at privacy infringements arising out of commercial activities, the vague terms of ‘misuse’ and ‘family principles or values’ mean that these laws can be (and in practice, often are) broadly interpreted and applied to LGBTQ+ cases.” (Hong Kong Dignity Institute, 10 April 2024, pp. 12-13).
According to a January 2024 article by Egyptian human rights researcher Nora Noralla, published by Cairo52, a legal research institute based in Cairo, the Economic Court in Alexandria has emphasized through multiple rulings that Article 25 of the Anti-Cybercrimes Law, which specifies that whoever violates social and family values faces punishment, “explicitly criminalizes homosexuality”. Noralla notes that this was “a significant judicial move from a de facto criminalization of LGBTQ+ identities to an explicit one” (Noralla, 24 January 2024). In the March 2024 abstract for a law and policy guide on laws impacting LGBTI persons’ rights in Egypt, human rights researcher Nora Noralla notes: “Egypt has a complex legal framework, policies, and case laws that govern the human rights of LGBTQ+ individuals. While the focus is often on laws used by Egyptian authorities to criminalize LGBTQ+ identities, the situation is more nuanced. Whether explicitly or de facto, through policies, laws, or case laws, the Egyptian authorities consistently employ various methods not only to criminalize LGBTQ+ identities but also to erase them from society and public life. These methods include denying legal gender recognition for transgender individuals through case law and implementing new education policies purportedly aimed at ‘protecting youth from corrupt LGBTQ+ identities.’ The tools utilized by Egyptian authorities are numerous and intricate.” (Noralla, 11 March 2024)
Sources report online targeting of members of the LGBTI community by state actors (USDOS, 23 April 2024, section 6; BAMF, 30 June 2023, p. 3; PinkNews, 23 March 2023; BBC, 30 January 2023; HRW, February 2023, p. 6) as well as online extortion by organised gangs (HRW, February 2023, pp. 4, 42; BBC, 30 January 2023; see also USDOS, 23 April 2024, section 6). In a January 2023 article, the BBC reports that “[c]riminal gangs are using the same tactics as the police to find LGBT people. They then attack, humiliate and extort them by threatening to post the videos online” (BBC, 30 January 2023). Social media, dating websites and mobile phone apps were reportedly used by security forces to track down and arrest LGBTI persons. This led the online platform Grindr to issue a warning to its users in Egypt to be cautious when using the platform (USDOS, 23 April 2024, section 6; PinkNews, 23 March 2023). HRW notes in a February 2023 report on digital targeting, based in large parts on interviews conducted between February 2021 and January 2022 with LGBTI people in several countries, including Egypt, that in Egypt 29 arrests and prosecutions, including of foreigners, suggest a coordinated policy, which is "either directed or acquiesced to by senior government officials—to persecute LGBT people” (HRW, February 2023, p. 3). Reported police harassment according to rights groups and LGBTI activists included physical assault, forced solicitation of bribes to avoid arrest, being forced to share information concerning other LGBTI individuals (USDOS, 23 April 2024, section 6) and beatings and other abuse in police custody (Amnesty International, 24 April 2024). Abuses of LGBTI individuals in detention by authorities were also reported by HRW, including imposing solitary confinement, denial of food and water, denial of contact with family members or medical services, sexual assaults and other forms of physical violence (HRW, 11 January 2024). Sources further report forced anal examinations of members of the LGBTI community during arrest (CAT, 12 December 2023, p. 11; USDOS, 23 April 2024, section 6; Amnesty International, 14 August 2023, p. 7; UN Human Rights Committee, 14 April 2023, p. 2). According to a January 2023 report by CFJ et al., a central feature of persecutions under Act No. 10 of 1961 on combating prostitution “is forced anal examinations, performed by the Justice Ministry’s Forensic Medical Authority (FMA) upon referral from the prosecution, against individuals accused of ‘habitual debauchery’” (CFJ et al., 30 January 2023, p. 7). Abuse by co-inmates in detention is also reported (HRW, 11 January 2024)…
In its April 2023 report, the UN Human Rights Committee expresses its concern over a lack of investigations and punishments of cases “of discrimination, stigmatization, harassment and violence, including by law enforcement officials, against persons on the basis of their real or perceived sexual orientation or gender identity” (UN Human Rights Committee, 14 April 2023, p. 2). The USDOS reports that government efforts to address potential discrimination did not exist and that LGBTI persons seldom report discrimination for fear of being intimidated and arrested. With reference to local human rights groups and media reports, the USDOS notes that several domestic and street violence incidents or threats against LGBTI persons occurred in 2023, “including extortion attempts by criminal gangs entrapping members of the community via photographs or videos and threatening to expose the victims to family members or employers”. Moreover, local contacts reported several cases where landlords or neighbours tried to force LGBTI individuals to leave their homes by threatening to report them to the police.
117. In 'Country Reports on Human Rights Practices for 2020 - Egypt', United States Department of State, 30 March 2021, 20210401140813 stated:
Rights groups reported that authorities, including the Forensic Medical Authority, conducted forced anal examinations. The law allows for conducting forced anal exams in cases of debauchery. According to a LGBTI rights organization 2019 annual report issued in January, authorities arrested 92 LGBTI individuals in 2019 and conducted forced anal exams on seven persons.
118. The DFAT Country Information Report – Egypt, June 2019 noted:
[3.90] Although Egyptian law does not explicitly outlaw homosexuality, it is nevertheless a strict social taboo across socio-economic backgrounds and geographic locations. A 2013 study by the Pew Research Center found that 95 per cent of Egyptians surveyed believed society should reject homosexuality. As such, the overwhelming majority of LGBTI (lesbian, gay, bisexual, transgender or intersex) Egyptians hide their identity as far as possible. According to local interlocutors, if an individual is discovered to be LGBTI, or is perceived to be so, they are likely to face significant hostility in both urban and rural areas that may include violence. An October 2018 report by the UN Special Rapporteur on the Right to Adequate Housing found that gay Egyptians face “horrific” discrimination and harassment when looking for somewhere to live, and that they were frequently evicted, denied housing, and harassed because of their sexual orientation. Both gay men and lesbians come under considerable social pressure to enter into heterosexual marriages, and to produce children.
[3.91] While there are no laws that specifically prohibit homosexual acts, many LGBTI people have been charged with “habitual debauchery” under Law 10/1961 (a law that has also been used to prosecute women for prostitution). Human rights organisations report a considerable increase in instances of arrest, harassment and mistreatment of LGBTI individuals by police under the Sisi government. While most individuals arrested on suspicion of homosexuality are arrested from the street, local NGOs have also reported cases of entrapment via dating apps. Police reportedly seize the phones of those arrested and search data to find other LGBTI individuals, while some detainees have reported being tortured to provide names of others. Human rights groups report that detainees accused of homosexuality are regularly subjected to rape and assault in prisons and police stations by both guards and other inmates informed of their ‘crimes’, while authorities often deny HIV+ detainees medication. There is anecdotal evidence suggesting an increase in criminals mimicking police tactics by entrapping people online and extorting, assaulting, or burglarising their homes in the knowledge that victims are unlikely to report it to the police.

3.1 Depending on factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education, SOGIESC individuals recognize and act on their SOGIESC differently. An individual's self-awareness and self-acceptance of their SOGIESC may present as a gradual or non-linear process. There is no standard set of criteria that can be relied upon to establish an individual's identification as a SOGIESC individual.
3.3 Many SOGIESC individuals conceal their SOGIESC in their country of reference out of mistrust or fear of repercussion by state and non-state actors, or due to previous experiences of stigmatization and violence. These circumstances may manifest themselves as an individual being reluctant to discuss or having difficulty discussing their SOGIESC with a member based on a fear or general mistrust of authority figures, particularly where intolerance or punishment of SOGIESC individuals are sanctioned by state officials in an individual's country of reference.
3.4 SOGIESC individuals who have been in immigration detention while in Canada may face additional challenges due to the particular difficulties SOGIESC individuals may face in detention.
3.5 The intersection of SOGIESC with additional marginalization factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education may create both an increased risk of harm as well as distinct and specific risks of harm. The intersection of these factors, which are non-exhaustive, may impact an individual's access to state protection or an internal flight alternative (IFA).
3.6 SOGIESC individuals may face a heightened risk of experiencing mental health challenges, often stemming from a history of social isolation, mistreatment and lack of social support in their countries of reference. SOGIESC individuals may experience internalized homophobia, sexual stigma or oppression. They may also have depression, post-traumatic stress disorder relating to past physical or sexual violence, anxiety, suicidal tendencies, dissociation, decreased capacity for trust, and other trauma based on their SOGIESC. These issues may manifest themselves in a variety of ways and can have an impact on an individual's ability to testify in a proceeding before the IRB.
3.7 Some SOGIESC individuals may be particularly vulnerable due to mental health issues or traumatic circumstances experienced because of their SOGIESC.
154. The Tribunal notes that the claim that the applicant was a member of the LGBT community was before, and considered by, the delegate in making the delegate’s decision the subject of the review before the Tribunal. To the extent that there is evidence which supports the claim, which was not before the delegate, the Tribunal is not satisfied that the applicant does not have a reasonable explanation as to why, such that the adverse inference required by s 423A of the Act does not arise. This is because the Tribunal accepts that an individual's self-awareness and self-acceptance of their SOGIESC may present as a gradual or non-linear process, the applicant is a survivor of childhood abuse, and as the applicant said during the hearing, which the Tribunal accepts, they found the process very difficult, and they did not fully understand what evidence was needed in support of their claim. This has also been taken into account when considering that the protection visa application does not contain a complete history of the applicant’s sexual history, despite the warning in the protection visa application that the applicant must provide all the details about why they were seeking protection, in addition to fact that the Tribunal accepts what the applicant said about their first sexual experiences occurring a long time ago and the applicant had spent a long time in detention or imprisonment.
155. The Tribunal notes that some of the Applicant’s personal information was inadvertently publicly accessible for approximately 24 hours from 2:30pm on 7 April 2022 to around 3pm on 8 April 2022 on the Australian Parliament House website, at which time it was removed. Information that was published and could possibly have been accessed about the applicant was their name, their period of detention, their immigration history, as well as information pertaining to their criminal offences, protection claims, which in the applicant’s case included a claim they were a member of the LGBT community, and medical history. However, based on the information before the Tribunal, the Tribunal finds that the Egyptian authorities did not access that information about the applicant whilst it was available.
156. On the evidence before it, including the country information referred to above, the Tribunal finds that the chance of the applicant suffering harm for reasons of their sexual orientation, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders, if they lived openly as a bisexual man, would not be remote or far-fetched.
157. The Tribunal finds the risk to the applicant of harm in the reasonably foreseeable future arises from their membership of the LGBT community, which is socially unacceptable in Egypt and, which, based on the country information, is a cause for being targeted by the Egyptian authorities. The Tribunal considers that the group of “bisexual Egyptian men” is identifiable by the characteristics of gender, nationality and sexual orientation, and the common characteristics or attributes are not a shared fear of persecution. The Tribunal is satisfied that the harm the applicant fears is for reason of their membership of a particular social group for the purpose of s 5J(1)(a).
158. The Tribunal accepts the country information that reported police harassment of LGBT people included physical assault, forced solicitation of bribes to avoid arrest, being forced to share information concerning other LGBTI individuals, beatings and other abuse in police custody, imposition of solitary confinement, denial of food and water, denial of contact with family members or medical services, sexual assaults and other forms of physical violence and forced anal examinations during arrest. As the risk of harm includes physical assaults and beatings, anal examinations, harsh imprisonment terms and sexual and physical violence whilst detained, the Tribunal finds that the harm risked amounts to serious harm, particularly to a survivor of childhood abuse.
159. The Tribunal is satisfied that if the applicant returns to Egypt in the reasonably foreseeable future there is a real chance of serious harm from the Egyptian authorities for the essential and significant reason of the applicant’s membership of the LGBT community and the fact that the applicant wishes to practice their sexual orientation freely, based on what the applicant said to the Tribunal. This is systematic and discriminatory conduct which applies to all areas of Egypt, based on the country information.
160. Section 5J(3) requires a person to take reasonable steps to modify their behaviour, but specifically excludes a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. The Tribunal has found that the applicant is a member of the LGBT community and further finds that a modification of the applicant’s behaviour to avoid a real chance of persecution would violate this exception and require them to modify a fundamental characteristic of their identity and conceal an innate or immutable characteristic and their true sexual orientation and/or gender identity.
161. The Tribunal accepts that the applicant fears being persecuted as a member of the LGBT community and finds that the applicant is a refugee as defined in s 5H(1) of the Act.
Conclusion
162. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
163. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rebecca Lee
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 4459

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction