2433478 (Refugee) - [2025] ARTA 1548

2433478 (Refugee) [2025] ARTA 1548 (16 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2433478
Tribunal:General Member S Vohra
Date:16 June 2025

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

Statement made on 16 June 2025 at 10:46am

CATCHWORDS
REFUGEE – protection visa – Mauritius – particular social group – LGBTIQA+ – religion – Buddhism – ethnicity – Chinese – fears religious conversion therapy and arranged marriage – discrimination due to ethnicity – fears police brutality, racism, homelessness, economic hardship – mental wellbeing – homosexuality decriminalised – protected by law – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 September 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Mauritius, applied for the visa on 9 April 2024. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
On 16 September 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 1 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [sibling, Sibling 1] and his work colleague, Mr [A]. A French interpreter was present at the hearing, however the applicant spoke fluently in English. A Burmese interpreter was present over video to assist Mr [A].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant is [an age] year old Mauritian man with Chinese ancestry. He first came to Australia [in] July 2018 on a student visa and has returned home four times to visit his family. He applied for a protection visa on 9 April 2024 on the basis of his homosexuality.
Evidence before the Department
The information provided to the Department in support of the applicant’s claims to engage Australia’s protection obligations was contained in his protection visa application form and attached statutory declaration dated 29 January 2024. A submission from the applicant’s representative was also attached. In summary, the applicant claimed in the statutory declaration that:
i.He first arrived in Australia on a student visa in 2018 and his last arrival in Australia was [in] October 2023. On the occasions when he returned to Mauritius, he had to hide his true sexuality as he was fearful of being attacked by people in the general public as well as by his family.
ii.He originally left Mauritius due to a well founded fear for his life due to his sexual orientation as a homosexual. He fears conversion therapy, threats to life and social stigma. He claims that authorities are unable to provide protection and he may face discrimination from the police, unfair arrests and police brutality, which could extend to torture, corporal punishment and possibly death. If he was open about his sexuality, he would face difficulty in obtaining employment and, in the workplace, he would experience workplace discrimination, bullying, racism and ostracization.
iii.He did not apply for a protection visa in 2018 as he did not know about the visa. He only found out about it around October 2023 when a work colleague told him about it.
iv.His family in Mauritius are extremely conservative and condemn members of the LGBTIQA+[1] community. His family follow Buddhism and are superstitious, believing that being gay is unnatural and may be the work of evil. His parents are strict and place value on family honour. They would disown him if they knew of his sexual orientation.
[1] LGBTIQA+ is an acronym that stands for Lesbian, Gay, Bisexual, Transgender, Intersex or Queer. The Tribunal acknowledges that variations of this acronym exist. It chooses to use LGBTIQA+ in this decision, as the most inclusive terminology. However, where it references or quotes from other publications or sources, it reproduces the acronym used in that publication or source. Therefore, the reader may see a mix of terminology used in this decision.
v.He discovered his sexuality in kindergarten at the age of 5 when the teacher asked the students to mention the name of the student that they want to marry one day. He mentioned a boy’s name and was laughed at by the class. He was humiliated by his teacher and punished, being told to stand in the corner. His teacher contacted his parents to discuss his sexual orientation and told them to monitor the applicant. The applicant told his parents that he had misunderstood the question.
vi.In [year], when he was 9, his parents threatened that if he does not follow family values he will be kicked out and disowned. For his mother, the most serious offences were taking drugs or being a homosexual. She would rather he was dead than tarnishing the family reputation. The applicant claims that this guarantees that he will be subject to conversion therapy. His mother once attempted to strangle him as a child when he was throwing a tantrum, which shows that she might kill him in a fit of rage.
vii.When he returns to Mauritius, it is to visit his grandparents. He feels he has to lock his bedroom door as his mum might strangle him if she found out that he is gay. Other individuals in the Mauritian community may also attack him.
viii.He has experienced racism and bullying at school due to his ethnicity as Chinese, this would be worse if it was revealed that he is gay.
ix.When he was 17, he revealed to a friend called [Friend A], that he (the applicant) was gay and wanted to pursue a romantic relationship with [Friend A]. His friend [Friend A] reacted angrily and told other classmates that the applicant was gay. People started to laugh and taunt the applicant and he stopped going to school from [date]. He transferred to a different school and concealed his sexuality.
x.The applicant experienced racism and harassment by police officers in an incident in 2014. A police car stopped next to him when he was walking on the footpath and started to yell racist slurs at him. He has been afraid of the police ever since.
xi.He watched the Pride March in Mauritius in 2023, following it live on [social media]. He noticed that spectators were heckling and making fun of the people who were marching. This upset the applicant and showed him that Mauritians are not scared to make discriminatory remarks.
xii.He has not yet dated any men in Australia. He has been in a gay bar and watched drag shows.
xiii.Relocation in Mauritius is not possible as he will face discrimination due to his sexuality in all areas of Mauritius. He will have to move to poor neighbourhoods where he will get assaulted, robbed or killed. If he moves to middle or upper class neighbourhoods, he will get death threats and verbal abuse. People in the neighbourhood might lodge false accusations such as paedophilia against him. There is a high risk of false accusations and then he will experience police brutality including beating, tasering on his private parts, getting punched all over his body and verbal abuse. The police may pay people to harm him and cover up his death as suicide.
xiv.If his relatives find out about his sexuality, he will be subject to conversion therapy in the pagoda which may take the form of prayers or reciting verses to cast out evil spirits.
xv.He will not be able to get a job owned by Chinese Mauritians as they will have learnt about his sexuality, and people from other communities will prefer to hire people of their own ethnicity. He will be denied employment opportunities in Mauritius only for being gay.
In the submission dated 9 April 2024 attached to his protection visa application, his representatives reproduce the contents of the applicant’s statutory declaration. They then provide the breakdown of religions in the Mauritian population and submit that ‘given the heavy prevalence of religion in the country, it is submitted that the views on members of the LGBTQI+ community is highly discriminatory’.
The submission references section 250 of the Criminal Code which criminalises sodomy and bestiality, as well as the 2023 Supreme Court decision which strikes down that clause as discriminatory and unconstitutional. It is submitted that, despite these positive and overdue judicial steps, there remains an ingrained homophobia within the Mauritian society.
In support of its contention that the applicant will face harm due to his sexuality, the submission references, among others:
·The 2017 UK Home Office Country Policy and Information Note, which refers to Mauritius’ conservative population and strong religious beliefs as generating a climate where homophobic attitudes persist.[2]
·The assumed underreporting to police by LGBTIQA+ victims of verbal abuse or violence. The submission refers to the arrest of a young transvestite who was strip searched and mocked by police.
·A 2021 report by the Young Queer Alliance, an NGO in Mauritius, on the socio-economic conditions of LGBTQ people in Mauritius which claims that equal rights for members of the LGBTQ community have still not been obtained and there is still ‘alarming stigmatisation, hate crimes and discrimination’.[3]
·A reference to the applicant’s fear that his family will force him to undertake conversion therapy and a reference to the United Nations High Commissioner for Human Rights Office’s definition of conversion therapy as interventions that purport to achieve a change in a person’s sexual orientation or gender identity.[4]
·Excerpts from the 2022 US Department of State report on Mauritius.
·Excerpts from the 2022 Freedom House, Mauritius Freedom in the World Report.
·A summary of the outstanding issues identified by Civicus Lens on the rights of LGBTQI people in Mauritius.
·Excerpts from a 2023 academic article by entitled ‘Workplace discrimination against LGBT employees in Mauritius: A sociological perspective’, by Shabneez Bhankaraully, Michel Goyer and Jeremy Aroles.
·Excerpts from a 2021 report by the Young Queer Alliance called “A place called home: the conditions and challenges of LGBTQIA+ persons in family settings”.
[2] United Kingdom Home Office, “Country Policy and Information Note – Mauritius: Sexual Orientation and Gender Identity”,
[3] Young Queer Alliance, The Socio-economic conditions of LGBTQ people in Mauritius’ (2021), Available at: United Nations Human Rights Office of the High Commissioner, ‘Conversion Therapy Can amount to torture and should be banned says UN Expert’ (13 July 2020), Available at: and-should-be-banned-says-un-expert
The submission also includes a legal section, outlining that the applicant falls under the definition of refugee and falls within Australia’s complementary protection obligations.
The applicant attended a telephone interview with a Department delegate on 15 August 2024.
Following the interview, on 21 August 2024, the applicant’s representative submitted a post-interview submission. In summary, it maintains that, despite the ‘well-overdue’ Supreme Court ruling in October 2023, there remains an ingrained homophobia within Mauritian society and the applicant remains fearful of ‘the behaviour of society and the behaviour of his immediate family members (particularly his parents)’ (italics in original). He maintains that he may be subject to conversion therapy. The submission further claims that he may be abducted by his family, suffer forced confinement and have to engage in forced conversion therapy, as this is not banned in Mauritius.
The delegate accepted that the applicant is a genuine homosexual, that his sexual identity is at odds with the expectations of his family and that this has resulted in a great deal of anxiety for the applicant. However, the delegate found that the harm that the applicant claimed to have experienced did not meet the ‘serious harm’ threshold in s5J(5) of the Act and that, on balance, there is an increasing shift in the political and legal landscape in Mauritius toward the growing recognition of the rights of LGBTIQA+ community. The delegate further found that there was not a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to Mauritius.
Evidence before the Tribunal
In his application to the Tribunal for merits review, dated 16 September 2024, the applicant attached a copy of the delegate’s decision record.
Pre-hearing submissions
The applicant and his representative submitted a number of documents to the Tribunal before the hearing. These included statutory declarations, letters of support, submissions by the applicant’s representatives, country reports and news articles as follows.
Statutory Declarations
·In the statutory declaration, the applicant again imagines scenarios which may occur if his parents find out he is gay. These include being “kicked out of the house” and disowned without financial help which may lead him to have to move to a poor neighbourhood which guarantees that he will be robbed, assaulted, targeted due to his Chinese ethnicity and even killed. His family (who have kicked him out of the house) might then report him as a missing person. If he ends up in a middle-class neighbourhood, it is “highly likely” that the residents will not want him there (perhaps hearing on the news that he is a missing person) and he may be accused of being a bad influence on their children, be falsely accused of paedophilia or similar and be arrested. If this happens, he will experience police brutality to confess to the crimes and be subject to arbitrary torture such as being tasered on his intimate parts. He claims that the worst-case scenario is that he will be killed by police in jail and the police will say that he died by suicide.
·The applicant also claims that he may suffer long term mental and emotional damage impacting his general well-being, may not be able to find a job and will not be able to take over the family business. Financial hardship due to being denied employment opportunities will follow.
·He fears that if he does not disclose his sexual orientation, he will be forced by his family into an arranged marriage. He may even be abducted by his family.
·[Sibling 1’s] statutory declaration goes on to state that [Sibling 1] asked their parents what they would have done if one of their kids was either a drug addict or a homosexual. Their response was that they would abandon or lock up a drug addict and let them withdraw or send them to a non-profit organisation for drug related issues. If their child was a homosexual, they would send him to see a psychologist to check their mental health condition.
·[Sibling 1] thinks that the applicant would be pressured to change his sexual orientation. In the most extreme or worst-case scenario, the applicant will end up being locked up for being gay and may even be food deprived, or the applicant himself may go on a food strike which may impact his mental health.
Letters of Support
Submissions from the representative
·The submission refers to a 2020 report by the International Rehabilitation Council for Torture Victims which states that in China, Ecuador, Uganda and Mauritius, individuals suffer forced confinement, including in psychiatric hospitals and that conversion therapy is practised in government-run hospitals or clinics in China, Iran and Mauritius. (The Tribunal notes that it raised this citation with the representative at the hearing, stating its view that the sources provided in the report did not in fact support the conclusions reached in the report.)
·It refers to the World Culture Encyclopedia which states that Sino-Mauritians forge economic alliances between clans through marriage. It then claims this supports the applicant’s fears that he will be forced into a heterosexual marriage by his parents if he returns to Mauritius.
·It again references the 2023 academic article by entitled ‘Workplace discrimination against LGBT employees in Mauritius: A sociological perspective’, by Shabneez Bhankaraully, Michel Goyer and Jeremy Aroles, claiming that discrimination in the workplace results in the suffering of extreme forms of serious mental harm.
·It refers to the DFAT Country Information Report on China seeking to use it to show that the applicant’s family has conservative and strict Chinese family values. It refers to the section in the report where it is stated that violence against LGBTI individuals by family members is reported [in China]. The submission draws the conclusion, based on the DFAT Country Information Report on China, that ‘as an engrained component to Chinese families’ societal perceptions, members of the LGBTQIA+ community, especially their own children, are evidently viewed as second-class citizens or suffering from a mental illness”.
Country Reports
Newspaper and academic articles
Evidence at the Hearing

At the hearing, the applicant reiterated much of the information included in his statutory declaration, including the incident with his friend [Friend A]. Additionally, the applicant provided evidence which is summarised as follows:
[Sibling 1] gave evidence about what [their] parents reaction might be if they found out if he is gay. [Sibling 1] said that [their] family has used a psychologist before, when [Sibling 2] had exam stress. [Sibling 1] is worried that the psychologist might try to “fix” the applicant from being gay. [Sibling 1] thinks [their] parents might be verbally abusive and then maybe physically abusive. [Sibling 1] thinks that once [their] mother wielded a knife to [Sibling 2].
The applicant’s work colleague, Mr [A], also gave evidence. He has worked with the applicant since 2022 and they are good friends. He gave evidence that the applicant has become more open and confident in the time that he has known him and seems open and friendly to customers who are part of the LGBTQIA+ community.
The representative made a submission saying that, while there were improvements in the law in the Mauritius, society has not yet caught up. While the harm the applicant might face would not be physical, the discrimination he would face as a gay Chinese Mauritian would impact his mental and emotional state, whereas he is happy and has many friends in Australia. She submits that he went through “dark times” when he was in Mauritius. She noted that the law has not been changed since the court struck down the law criminalising sodomy and the Government has not committed to its change. She questions how he will find a job if he is openly gay. She knows he would like to get married and have children one day.
Post-hearing submissions
A number of post hearing submissions were received by the Tribunal, as listed below:
i.A further submission by the representative dated 16 May 2025 which again seeks to outline the societal harm and persecution in Mauritius that the applicant is at risk of facing if he returns to Mauritius. It includes sections on police violence, access to the labour market, societal and family threats, conversion therapy and ‘secondary victimisation”.
ii.A statutory declaration of [Sibling 2]. It details [his/her] “research” into conversion therapy in Mauritius, saying that it is difficult to find anything in writing and then concluding it is underreported. It details [his/her] experience of seeing a psychologist for [his/her] obsessive compulsive disorder and academic stress. [Sibling 2] claims that the psychologist spoke to [him/her] in an ‘arrogant way’ and [he/she] felt interrogated. [Sibling 2] says [he/she] ‘can’t imagine’ how [their] father would react finding out that [the applicant] is gay yet then goes on to imagine different scenarios, including one where the applicant is diagnosed as bipolar, locked up in a psychiatric hospital, decides to escape and is violently apprehended or killed by police.
iii.An undated document by the Young Queer Alliance, setting out its vision for accessible and inclusive healthcare for LGBT people.
iv.A dissertation by a student at the University of Capetown entitled ‘Untold Stories: Exploring Perceptions of LGBT Victims of Hate Crimes in Mauritius on Police Responses’ dated April 2019. The research is based on semi-structured interviews with 5 participants.
v.A report by the International Rehabilitation Council for Torture Victims entitled “A Global Overview of Conversion Therapy”, dated 2020.
vi.A 2017 report by The Other Foundation, entitled “Canaries in the coal mines: An analysis of spaces for LGBTI activism in Mauritius”.
vii.An article in the LGBT Asylum News, dated 24 August 2010 entitled “Mauritius: Kidnapped to “cure” their homosexuality” which cites one case of a 20 year old who was confined for over a week at her parent’s house.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out above, and an extract of key provisions of the Act is provided in the Attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s identity and country of reference
The applicant claims to be a citizen of Mauritius. The applicant provided a copy of his passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection.
The Tribunal accepts that the applicant is a citizen of Mauritius which is also his receiving country for the purposes of refugee and complementary protection assessments.
Relevant country information
Mauritius has a relatively robust legal framework which protects its nationals from discrimination based on sexual orientation:
·Article 3 (Fundamental rights and freedoms of the individual) and article 16 (Protection from discrimination) of the Mauritius Constitution prohibit discrimination based on race, place of origin, political opinions, colour, creed or sex.[6] The Mauritius National Human Rights Commission stated in its annual report for the year ending 2015 that the term ‘sex’ in the Constitution can be construed to encompass sexual orientation.[7]
·The Protection of Human Rights Act 1998 provides that allegations of discrimination are to be dealt with by the Equal Opportunities Commission.
·The Equal Opportunities Act 2008 has been in force since 1 January 2012 and prohibits discrimination against persons based on, amongst other things their sexual orientation, with "sexual orientation" being defined to mean "homosexuality (including lesbianism), bisexuality or heterosexuality". It encompasses both the public and the private sector, in the areas of employment activities, education, provision of goods and service, accommodation, sports and other aspects of the economy and society.
·The Employment Rights Act 2008 and Workers Rights Act 2019 include protection and equal opportunities for LGB persons in employment settings and prohibit discrimination in employment on the basis of sexual orientation.
·Discrimination on the grounds of sexual orientation is explicitly prohibited in the section “Personal and Professional Behaviour” of the 2015 Code of Ethics for Public Officers.
[6] Constitution of Mauritius
[7] Mauritius National Human Rights Commission. Annual Report 2015
The 2023 US Department of State human rights report for Mauritius reported that:
The law prohibited discrimination by state and nonstate actors based on sexual orientation, gender identity or expression, expressly with respect to essential goods and services such as housing, employment, and access to government services such as health care. The government generally enforced the law.[8]
[8] United States Department of State 2023 Country Reports on Human Rights Practices” Mauritius, 22 April 2024, p.17.
On 4 October 2023, a decision of the Supreme Court of Mauritius decriminalised consensual same sex acts between men in private. It found as follows”
[S]ection 250(1) of the Criminal Code is unconstitutional and violates section 16 of the Constitution in so far as it prohibits consensual acts of sodomy between consenting male adults in private and should accordingly be read so as to exclude such consensual acts from the ambit of section 250(1).[9]
[9] Judgment-AH SEEK', Supreme Court of Mauritius, 4 October 2023, p. 26.
However, the Criminal Code of Mauritius has not yet been updated to reflect this development and, consequently, the crime of “sodomy” still appears in the text.
A 2024 Freedom House report makes the following observations:
While LGBT+ individuals still face harassment and discrimination, the Supreme Court decriminalized same-sex sexual activity in October 2023. The prohibition on same-sex sexual activity had been seen as encouraging discrimination against LGBT+ individuals.[10]
[10] Freedom in the World 2024 - Mauritius', Freedom House, date not specified, section B4.
Some sources consider that societal attitudes in Mauritius are improving. For example, according to the Bertelsmann Stiftung report BTI Country Report: Mauritius, ‘there is a growing level of tolerance toward the LGBTQ+ community, although it largely remains off the public radar due to the country’s conservative nature.[11]
[11] BTI 2024 Country Report: Mauritius', Bertelsmann Stiftung, 20 March 2024.
Further, a 2023 report by the organisation Afro Barometer provides the following statistics in relation to societal attitudes in Mauritius:
Mauritius (60%), respondents say they would welcome or would not care about a neighbour’s homosexuality.
[…]
[12] ‘Uganda a continental extreme in rejection of people in same-sex relationships', Afro Barometer, 11 May 2023, p. 6 and p 8.
Between 2014/2015 and 2021/2022, average tolerance has increased by 11 %.[12]

The 2017 UK Home Office report (which was referenced in the representative’s submission dated 9 April 2024) states that:
In general, members of the LGBT community in Mauritius do not experience a level of discrimination or hostility that, even when taken cumulatively, reaches the level of being persecutory or otherwise inhuman or degrading treatment. However, each case must be considered on its facts with the onus on the person to demonstrate that they would be at real risk on return.[13]
[…]
Mauritius is a conservative society where homophobic attitudes persist shown though discrimination and harassment though open hostility is rare. LGBT persons experience most difficulty within their own family resulting in fear of ostracism or, in some cases, reprisal from family members. In general, the level of discrimination is not such that it will reach the level of being persecutory or otherwise inhuman or degrading treatment.[14]
[13] United Kingdom Home Office ‘Country Policy and Information Note – Mauritius: Sexual Orientation and Gender Identity’ at [2.3.11].
[14] Ibid at [3.1.2].
The publication submitted by the applicant ‘Canaries in the coal mines’ by the Other Foundation states that:
The situation for LGBTI people in Mauritius is, however, not completely constrained and there are clear shifts on several fronts that bode well for change. Despite the criminalization of sodomy, Mauritius is one of the few African nations to explicitly protect its citizens from employment discrimination based on sexual orientation. Young people are clearly initiating change, for example through the Youth Parliament which recently stated that “This house believes that LGBT rights in Mauritius are legally complicated and vague” and that legislative change needed to happen.[15]
[15] The Other Foundation, Canaries in the coal mines -an analysis of spaces for LGBTI activism in Mauritius, 2017 at p.2.
Nevertheless, in comparing the legal situation of LGBTIQ+ in Mauritius with societal attitudes, the organisation Civicus Lens notes:
On the Equality Index, Mauritius scores more highly for its legal situation than it does for public attitudes towards LGBTQI+ people. A recent survey showed that tolerance towards people in same-sex relationships in Mauritius had increased, but social attitudes continue to lag behind changes in laws.[16]
[16] Mauritius begins to correct a historic wrong towards LGBTQI+ people, Civicus Lens, p. 5, 24 October 2023.
The Tribunal accepts that social attitudes lag behind the laws of Mauritius and that some level of discrimination and harassment toward LGBTQ+ individuals persists in Mauritius, as evidenced by a number of sources.
For example, the Tribunal notes the 2021 report by the Young Queer Alliance, an NGO in Mauritius, which claims that equal rights for members of the LGBTQI+ community have still not been obtained and there is still ‘alarming stigmatisation, hate crimes and discrimination’.[17]It further notes the statistics from a 2022 study the Young Queer Alliance undertook on discrimination, stigma and violence experienced by LGBTQ people in Mauritius.[18] The study showed that 61.5% faced discrimination, 67.9% have faced stigmatisation and 45.4% experienced violence.
[17] Young Queer Alliance, The Socio-economic conditions of LGBTQ people in Mauritius’ (2021), Available at: Fokeerbux Najeeb Ahmad and Lasavanne Jürgen Soocramanien, Young Queer Alliance The socio-economic conditions of LGBTQ people in Mauritius, 2022
A 2024 European Commission report indicates for Mauritius, ‘societal stigmatisation and advocacy possibilities are still a matter of concern”.[19]
[19] EU Annual Report on Human Rights and Democracy in the World; 2023 Country Updates, European Commission, 24 May 2024, p. 125.
The LGBTQI+ advocacy organisation Outright International makes the following observation about Mauritius in a 2024 report:
..the social perception of LGBTQ people is not always positive, and there have been instances of physical attacks and hate speech from religious and traditional groups against LGBTQ people’.[20]
[20] Beyond the Rainbows and Glitter: Pride Around the World in 2023', Outright International, 10 June 2024, p. 72,
The 2025 report by the Mauritian LGBTIQ+ organization Young Queer Alliance makes the following observations:
Mauritius is a small island whereby homosexuality has been decriminalised through strategic litigation only on 4 October 2023. Nonetheless, queer people still strive through the daily harshness of homophobia and transphobia to varying degrees.[21]
[21] Protection against violence and discrimination based on sexual orientation and gender identity in relation to forced displacement', Young Queer Alliance, 14 February 2025.
In a 2025 article Human Rights Watch indicates as follows:
LGBT people in Mauritius continue to face a lack of legal recognition for same-sex relationships, reportedly pervasive discrimination, and high levels of violence, homophobia, and transphobia.
The government should enact and enforce comprehensive laws and policies that explicitly protect LGBT people. The government should also undertake public education campaigns to end stigma against LGBT people and work with ministries, institutions, and civil society to raise awareness about sexual and gender diversity.[22]
[22] Mauritius: Set Rights Agenda for New Government', Human Rights Watch, 19 March 2025,
Does the applicant satisfy the refugee criterion for protection?
The Tribunal notes that a fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[23]
[23] MIEA v Guo (1997) 191 CLR 559 at 572
Further, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that the fear is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant.[24]
[24] See MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal accepts that the applicant is [an age] year old Mauritian man, raised in an ethnic Chinese, Buddhist family. It accepts that he [has] siblings, all of whom have come to Australia as students. It accepts that his parents are conservative and that there was a strong focus on education in the family when he was growing up.
The Tribunal accepts that the applicant identifies as a member of the LGBTIQA+ community as a homosexual man.
The Tribunal must consider whether there is a real chance that the applicant may face serious harm for reasons of his membership of the LGBTIQA+ community, as a homosexual man.
In MIMA v Haji Ibrahim, McHugh J outlined the degree of harm that would be required to constitute persecution. The judgement predates the current legislation, yet remains of assistance in determining this issue. His Honor explained:
The Convention protects person from persecution, not discrimination. Nor does the inflection of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive, or prolonged that it can be described as persecution.[25]
[25] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in ss 5J(4)(b)) by way of an aid to their application.[26] The following are listed as instances of ‘serious harm’:
(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.
[26]        MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
That Explanatory Memorandum explains that the definition of ‘persecution’ as set out in s 91R(1) (now s 5J(4)):
… reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[27]
The applicant’s claims to fear harm from his family, especially his parents, and claims about housing and employment.
[27] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].
The applicant claims that he will fear harm if his parents find out that he is homosexual. The Tribunal accepts that, currently, his parents do not know about his sexuality. However, the Tribunal recognises that the applicant cannot be expected to hide his true sexuality and it can be assumed that, at some point in the foreseeable future, his parents will find out or be told.
The applicant gave a variety of scenarios about how his parents may react. He variously suggested that they may lock him in his room, alternatively that they may throw him out of the house. He said that they may disown him or cut him off financially. He thought that they may send him to the pagoda or to a psychologist for ‘conversion therapy’. Alternatively, he suggested that his mother might strangle and kill him.
The Tribunal accepts the applicant’s testimony and [Sibling 1’s] testimony that their parents are conservative and not accepting of homosexuality, considering that it is unnatural or evil. The Tribunal appreciates that his parents may react badly if or when they find out about the applicant’s sexuality. Exactly how they will react is speculative, as the applicant acknowledged in the hearing. Nevertheless, the Tribunal will consider the different scenarios raised by the applicant.
Firstly, the Tribunal has carefully considered whether there is a real chance that the applicant will face physical harm from his parents. The applicant claimed that his mother may try to strangle him in a fit of rage, or while he is sleeping. The Tribunal notes that, according to the applicant’s own evidence, apart from one incident when he was throwing a tantrum as a child, his mother has never been violent to him before or since and was never violent with either of his [siblings]. The Tribunal does not accept [Sibling 1’s] testimony at the hearing that [he/she] ‘thinks’ that her mother once held a knife to [Sibling 2]. No detail was given and the incident was not referred to in any of the statutory declarations or letters received, including from [Sibling 2]. No other incidents of violence from either parent have been cited. The Tribunal recalls that the applicant said that, since the law had changed in Mauritius to prohibit the smacking of children, his mother had never hit them. This shows that she respects the law. The Tribunal has also had regard to the fact that the applicant is no longer a small child, he is a grown man and it is less likely he would be subject to physical discipline or violence from his mother who is now in her [age]. For these reasons, the Tribunal does not accept that there is a real chance that the applicant will be physically assaulted, physically harmed or killed by either of his parents.
Secondly, the Tribunal has considered whether the applicant’s parents may pressure him to go to the temple for what the applicant suggests is a religious form of ‘conversion therapy’. The applicant says that this may involve a ritual with prayers and incantations to invoke the spirits for advice. The Tribunal accepts that the applicant may face pressure to do this. However, while he may face significant pressure from his parents, the Tribunal does not accept that, given he is a grown man, they are able to make him submit to this. It might be uncomfortable and even distressing for the applicant to defy his parents, and he and they may feel that it is not culturally acceptable for him to defy them. However, the Tribunal finds that this discomfort or distress does not rise to the level of serious harm required for the purposes of the refugee criterion.
Thirdly, the Tribunal has considered whether the applicant’s parents may pressure him to see a psychologist and accepts that they may pressure him. The applicant speculated that this may become a form of conversion therapy if the psychologist tried to make him change or question his sexuality. However, the applicant is speculating and there is no evidence before the Tribunal that shows that psychologists in Mauritius practice conversion therapy. Indeed, in relation to involuntary or coercive medical or psychological practices, the 2023 US Department of State human rights report states that:
There were no reports of so-called conversion therapy during the year, nor were there reports that surgeries were performed on children or on nonconsenting adult intersex persons.
Further, the applicant is a grown man, not a child under the care of his parents, and could choose not to succumb to his parent’s pressure and could decide not to go to the psychologist.
The Tribunal does not accept the finding in the 2020 report by the International Rehabilitation Council for Torture Victims which states that in China, Ecuador, Uganda and Mauritius, individuals suffer forced confinement, including in psychiatric hospitals and that conversion therapy is practised in government-run hospitals or clinics in China, Iran and Mauritius. As raised with the representative at the hearing, the Tribunal notes that the sources footnoted in the report did not in fact support the conclusions as stated in the report and did not appear to show any evidence that conversion therapy is practised in Mauritius.
Fourthly, the Tribunal has considered whether the family may “disown” the applicant, not wanting him in the house, not supporting him financially and not allowing him to take over the family business. The Tribunal accepts that they may react this way. However, the Tribunal notes that, as a well-educated [age] year old man, with prior work experience in Australia and 7 years’ experience of living independently from his parents, he should be able to look after himself which includes finding a job and housing. There is no evidence before the Tribunal that he will not be able to work, and no evidence (besides his own assertions) that he will face discrimination in securing employment or in the housing market. The Tribunal notes that the Mauritian Employment Rights Act (2008) prohibits discrimination on the basis of sexual orientation, which is defined to include homosexuality. The Tribunal acknowledges the study on workplace discrimination provided by the applicant. Based on interviews with 16 people, this study provides some evidence that discrimination against LGBTIQA+ members exists in the workplace, but it does not provide evidence that the applicant would be unable to secure a job. It also does not find that the types of discrimination outlined in the study, being mostly verbal taunts, rise to the level of serious harm required by the refugee criterion.
The Tribunal also does not accept the applicant’s claim that, if thrown out of the house, he will become homeless. There is no evidence that he would be locked out the housing market due to his sexuality. The applicant pointed to a case study in the 2025 report of the Young Queer Alliance, claiming it showed that there was discrimination against homosexuals in a particular, time-limited, government housing assistance scheme. The Tribunal does not accept that is what the case study shows, rather, it seems that the rules of the scheme do not explicitly say that same sex couples are eligible for it. The Tribunal finds that the applicant’s claims that he will be forced into a middle-class neighbourhood and framed for crimes he did not commit, which will lead to police brutality and then death, are far-fetched and speculative and do not meet the real chance threshold. The Tribunal also finds that the applicant’s claims that he may be forced into a poor neighbourhood which will then ‘guarantee’ his death are far-fetched and speculative. Based on the evidence before it, the Tribunal does not find that there is a real chance that this will happen to the applicant. The Tribunal also notes that the Young Queer Alliance has established a shelter for young LGBTIQA+ people who are rejected by the families, according to one of the sources provided by the applicant.[28] It does not find that the applicant will face homelessness.
[28] The Other Foundation ‘Canaries in the coal mines -an analysis of spaces for LGBTI activism in Mauritius’ Country Report 2017 at [4.2].
Fifthly, the Tribunal has considered the alternative scenario which the applicant suggested, that his parents may lock him in the house. The Tribunal finds it difficult to accept that, as a grown man who has lived independently for the past 7 years, his parents will be able to lock him up, particularly as it has not accepted that the applicant’s parents will be violent toward him.
The Tribunal has also considered a further alternative scenario presented by the applicant, that his parents will not find out that he is homosexual and then will force him into an arranged married. To this, the Tribunal again finds that, while he may face pressure to marry, he is an independent young man of [age] years and cannot be made to do this. The applicant has not provided any evidence that forced marriages occur in Mauritius and that they happen to adult men.
Fear of discrimination due to Chinese ethnicity
The applicant claimed that he feared discrimination due to his ethnicity as a Chinese Mauritian. He cited instances where people would randomly call out Chinese words, make slurs or racist gestures such as pulling at the eyes to make “slanty eyes”.
The applicant also recounted, and told his work colleague in Australia, about racism he experienced during his driving test from the examiner who was a police officer, and about an earlier time when a police car slowed down next to him and the officers mocked and taunted him with racial slurs. The Tribunal accepts that these incidents happened to the applicant.

There is no specific evidence, apart from the applicant’s assertions, that racism and discrimination against Chinese Mauritians is a documented issue. The 2023 US Department of State Report, provided by the applicant, says the following under the heading ‘Systemic Racial or Ethnic Violence and Discrimination’:
The constitution and the law protected members of racial or ethnic minorities or groups from violence and discrimination, and the government enforced the law. Community leaders claimed there was discrimination in the employment of Creoles (citizens of African descent) and Muslims of Indian origin in the public service. Poverty continued to be more common among Creoles than among those in any other community. Some political and civil society activists criticized government failure to publish full results of the country’s 2022 census.
There is no mention of discrimination against Chinese Mauritians. Nevertheless, the Tribunal accepts that the applicant may have been subject to isolated racist abuse due to his Chinese ethnicity, from people in the street, once from some police officers and from his driving examiner who was also a police officer. However, there is no evidence before the Tribunal that racism and discrimination on the basis of Chinese ethnicity are systematic or widespread in Mauritius. The incidents that the applicant has faced, while hurtful and causing some fear and distress, do not rise to the level of serious harm required for the refugee criterion. These incidents may also have caused the applicant to fear the police and to believe that he may be insulted, mocked or not offered assistance due to his Chinese heritage. The Tribunal however does not find that the evidence before it supports that conclusion.
Fears of police brutality
The applicant’s representative referred to the 2022 US State Department Country Report on Human Rights Practices for Mauritius, which states that:
The constitution and law prohibit such practices, but there continued to be allegations of police abuse, through either official complaints or allegations made on the radio or via social media. For example on May 27, political activists Bruneau Laurette and Louis Dominique Seedeeal (also known as Darren l’Activiste) posted videos in which police officers of the Criminal Investigation Division of Terre Rouge could be seen sexually assaulting a detainee with a truncheon (see section 1.d.). Officers of the same police unit were seen abusing detainees in at least two other videos: one such video showed officers using tasers to shock a detainee, and another video showed the same group of officers mocking a detainee who was forced to wash his underwear after he defecated on himself when officers physically abused him. After an investigation by authorities, three police officers were arrested and later released on bail and seven others were transferred to other police units.
[29] US State Department Country Report on Human Rights Practices for Mauritius, Section 1 c.
Impunity was a significant problem for police, and investigations involving officers often continued for years. While disciplinary actions against offending officers took place, dismissals or prosecutions were rare. Although the government had a mechanism of investigation through the Independent Police Complaints Commission and provided human rights training to security personnel, political interference and a culture of impunity within the police force contributed to making impunity a problem.[29]
The applicant claims that he may be the subject of police brutality, due to his Chinese ethnicity and/or his homosexuality, including torture which may lead to death. He claims that he would come to the attention of the police if his hypothetical future neighbours or work colleagues make false accusations against him, leading to his arrest. The Tribunal finds this scenario to be speculative, far-fetched and remote. It does not consider that there is a real chance that he will come to the attention of police through false allegations of his future neighbours. The Tribunal also notes the 2023 survey report by the organisation Afro Barometer which found that:
Mauritius (60%), respondents say they would welcome or would not care about a neighbour’s homosexuality.
The Tribunal notes that the crime of sodomy still appears in the text of the criminal law in Mauritius, despite being struck down as unconstitutional by the Supreme Court of Mauritius. The Tribunal notes that, prior to the judgement, it was reported that, in practice, consensual male adults engaging in anal intercourse in private are ‘very rarely, if ever, arrested and prosecuted for the offence of sodomy’.[30] As noted in one of the sources provided by the applicant:
Sodomy cases that have reached the courts have almost exclusively involved heterosexual persons, especially as an aggravating factor in divorce cases. Authorities rarely use the sodomy statute against same-sex couples, unless one of the partners cites sodomy in the context of sexual assault.[31]
[30] Judgment-AH SEEK', Supreme Court of Mauritius, 4 October 2023 at [26].
[31] The Other Foundation ‘Canaries in the coal mines- an analysis of spaces for LGBTI activism in Mauritius’ Country Report 2017 at [2.2].
Further, by being struck down as unconstitutional by the Supreme Court, the provision has been rendered void. As noted in the judgement:
The Constitution is the supreme law of Mauritius and any other law has to be consistent with the Constitution. The principle of separation of powers is entrenched in the Constitution and one branch of government may not trespass on the province of another. While Parliament is sovereign in the sphere of the enactment of laws, its sovereignty is not absolute inasmuch as any law enacted by it which is inconsistent with the Constitution may be declared void by the Supreme Court.
The Court then declared that the relevant section should be read so as to exclude consensual acts from its ambit. The Tribunal therefore finds that there is no real chance that the applicant will be prosecuted for the crime of sodomy, thereby coming to the attention of police and leading to police brutality.
Mental well-being
The Tribunal accepts that the applicant’s mental health may suffer if he returns to Mauritius. He may become estranged from his family, needing to set up a life for himself, finding a job and housing and withstanding pressure or disapprobation from his parents and extended family. The applicant has given evidence that psychologists practice in Mauritius and there is no evidence to show that the mental health services available in Mauritius would not be available to the applicant. The Tribunal, while acknowledging the possible anxiety or stress that the applicant may suffer, does not find that services are unavailable and does not find that the mental health issues that he may suffer rise to the level of serious harm required for the refugee criterion.
The Tribunal also notes that there are non-governmental organisations which support the LGBTIQA+ community such as Arc-en-Ciel, which provides a counselling/psychology service as well as resources, such as a family handbook intended for parents. The Young Queer Alliance, which has published a number of the resources provided by the applicant to the Tribunal, is also present in Mauritius and, according to its website, provides well-being programmes and psychosocial support to LGBTIQA+ people.
The Tribunal also notes the applicant’s claim that he would not be enter into a same-sex marriage or adopt a child as a homosexual man in Mauritius. The Tribunal notes that the applicant has never had an intimate homosexual relationship. He has no current partner or plans to marry. The Tribunal accepts that the law currently does not permit same-sex marriages or explicitly allow same-sex couples to adopt a child. However, it does not accept that not being able to marry or adopt a child as part of a homosexual couple amounts to serious harm or significant harm.
Totality of harm
The Tribunal has found that the applicant may become estranged from his family and may experience stress and distress due to this. It has found that he may face discrimination in the workplace due to his sexuality, for example in the form of verbal taunts and mockery. He may also face isolated incidents of racial taunts and mockery. The Tribunal has also found that his mental health may suffer and he may experience anxiety, depression or stress. The Tribunal has considered the totality of these experiences and considered whether, cumulatively, they amount to serious harm.
The Tribunal does not find that, cumulatively, the discrimination or harm that the applicant may face amount to serious harm. The applicant is a well-educated, upper middle class, young man with prior work experience and experience living independently. There is no evidence that he will not be able to live independently in Mauritius and not be able to find housing or work. Further, mental health supports exist in Mauritius, including specialist services for members of the LGBTIQA+ community, and there is no evidence that the applicant will not be able to access them. While his circumstances and life in Mauritius may be more difficult that they would be if he stays in Australia, the Tribunal remains mindful of the Explanatory Memorandum which explains that the definition of ‘persecution’ as set out in s 91R(1) (now s 5J(4)), specifically, …it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[32]
[32] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].
For the reasons given above, the Tribunal does not find that the applicant faces a real chance of serious harm, on return to Mauritius, due to his homosexuality, his Chinese ethnicity or his mental health. His fears of persecution in these respects are not well founded. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In doing so, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm.
The Tribunal has found that the applicant may become estranged from his family and may experience stress and distress due to this. It has found that he may face discrimination in the workplace due to his sexuality, for example in the form of verbal taunts and mockery. He may also face isolated incidents of racial taunts and mockery. The Tribunal has also found that his mental health may suffer and he may experience anxiety, depression or stress (together ‘the harms’). The Tribunal has considered whether these harms constitute significant harm, required by the complementary protection criterion.
The Tribunal is mindful of the definition of significant harm in s36(2A) of the Act, which states that:
(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.
The Tribunal is not satisfied that the harms that the applicant may face rise to the level of significant harm for the following reasons:
·The applicant will not be arbitrarily deprived of his life or face the death penalty.
·The harms are not acts or omissions by which severe pain or suffering are intentionally inflicted for a particular purpose as required under the definition of torture in s5(1) of the Act.
·The harms are not acts or omissions by which severe pain or suffering are intentionally inflicted, as required under the definition of cruel or inhuman treatment or punishment in s5(1) of the Act.
·The harms are not acts or omissions that cause or are intended to cause extreme humiliation which is unreasonable as required under the definition of degrading treatment or punishment in s5(1) of the Act.
In making these findings, the Tribunal has had regard to the particular profile of the applicant. It notes that he is a well-travelled, well-educated, articulate young man with an upper-middle-class upbringing. Evidence was given that he is increasingly confident. He has supportive siblings. While he claimed he may experience mental health issues, he has not given evidence that he has had any mental health issues in the past, and no evidence that he would be unable to access support services in Mauritius.
Given the above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm, as defined in s 36(2A) of the Act, as a necessary and foreseeable consequence of being removed from Australia to Mauritius.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing:1 May 2025
Representative:  Ms Aileen Chour
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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(2017), Available at:

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Citations
2433478 (Refugee) [2025] ARTA 1548

Cases Citing This Decision
0

Cases Cited
6

Statutory Material Cited
0

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MIEA v Guo [1997] FCA 22

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20