1700793 (Refugee) - [2019] AATA 6743

1700793 (Refugee) [2019] AATA 6743 (30 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700793
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:30 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 September 2019 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – wholly fabricated by purported 'agent' – particular social group – homosexual woman – dresses in a masculine manner – low level official and societal discrimination – mental health condition – credible witness – unique or exceptional circumstances – circumstance not anticipated by relevant legislation – victim of an unconscionable ‘agent’ – acted beyond scope of actual or ostensible authority – prejudiced visa applicant’s migration status – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 4, 5, 36, 65, 91R, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kaur & Anor v Minister for Immigration & Anor [2016] FCCA 736
Maharjan v MIBP [2017] FCAFC 213
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 dependant.
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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be citizen of China, applied for the visa on 16 October 2014 and the delegate refused to grant the visa on 19 December 2016.
The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, though the applicant chose to give evidence in English. The applicant was assisted by her migration agents, [Mr B] and [Mr C].
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and Refugee Law Guidelines and any country information assessment 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.
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial reasons for believing that, as a necessary and foreseeable consequence of her being removed to China, there is a real risk that she would suffer significant harm. For the following reasons, I have concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] August 2012 on a student visa valid until 22 October 2014. She departed Australia [in] December 2013 and returned [in] February 2014. She lodged an application for a protection visa on 16 October 2014.
In her application for protection, the applicant claimed to fear persecution in China due to her Christian faith.
However, at her interview with the departmental delegate (and also before the Tribunal in both written submissions and at hearing,) the applicant stated that that protection application had been lodged without her knowledge by a person called [Mr D], who she had actually instructed and paid to lodge a request for a further student visa so that she could continue her studies. At hearing, the applicant by her evidence and as confirmed in the written submissions before me, did not claim to fear persecution in China for any reason. She is not a Christian. She gave evidence that the claims in her written application were wholly fabricated by the agent. However, the applicant and her representative raised several factors why she believes that her case should be referred for Ministerial intervention so that she could be granted the student visa that she always intended. This would enable her to complete her studies and also visit her parents.
The written submissions filed on the applicant’s behalf were as follows (in summary):
Consideration 1: Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
·In August 2014, the applicant approached a purported migration agent, known as [Mr D], for assistance with lodging a further student visa before her initial student visa was to expire on 22 October 2014. She thought that he had done so in accordance with her instructions. She paid him initially $5,000 (and received a receipt) and then another $20,000 in December 2014 on his request as he said there were ‘some problems’ with the visa application. No receipt was given for this second sum and she has not seen him since then.
·Her purported agent appears not to have been a lawyer or a registered migration agent. The applicant was unaware that migration agents must be registered until this was explained to her by the migration agent who assisted her to lodge the Departmental Freedom of Information request. [Mr D] acted beyond the scope of his authority in lodging a protection visa application. Note the principle enunciated in Kaur & Anor v Minister for Immigration & Anor [2016] FCCA 736: a principal will be responsible to third parties for the acts of his or her agent acting within the scope of his or her actual or ostensible authority, even if the acts are fraudulent in nature.”
·[Mr D] was not acting within his actual or ostensible authority. The applicant has tried to locate him but has been unable to do so.
·As a consequence of her purported agent’s actions, the applicant is on a bridging visa associated with a protection visa rather than the expected student visa. In January 2015, when she was notified of the lodgment of her protection visa application, due to the effects of the legislation relating to student visas, and because it was more than 28 days after the expiry of her student visa, she was not able to lodge a valid application for a student visa. She was still completing her studies and according to her representative, did not meet the criteria for any other visa, including a partner visa.
·The legislation does not allow for flexibility in situations where applicants have been taken advantage of and are suffering the consequences of fraudulent and dishonest actions of a purported agent. This is a circumstance that is not anticipated by the relevant legislation, and it is also an unintended consequence of the legislation that an applicant would be so penalized by the fraudulent and dishonest actions of a purported agent.
Consideration 2: the applicant’s particular circumstances provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin.
·Whilst it is accepted that the applicant does not meet the criteria of a refugee for the grant of a protection visa, her particular circumstances and personal characteristics instead provide a basis for believing that there is a significant threat to her personal security, human rights or human dignity if she was to return to China.
·[The applicant]’s identity as a homosexual female, and as [Dr E] notes her male-like appearance combined with this identity, present a significant threat to her personal security, human rights or human dignity in China. As found in AAT case 1601459 (Ms Paxton) 2017, discrimination occurs against homosexual people in China and was possible in the case of that applicant even though that discrimination did not meet the definition of a refugee. (at paragraphs 45, 54 and 58)
·In light of the applicant’s past experiences in China in a homosexual relationship, she anticipates experiencing some stigma and discriminating behavior from society as a result of her sexual orientation. Reference was made to the attached psychological report from [Dr E], which supports this submission. [Dr E] opines that the applicant’s sexual identity and desire to keep it hidden because of societal and familial attitude towards homosexuality are connected to the applicants coping strategy of avoidance and denial, which affects her mental health and her ability to cope with associated difficulties which may arise. She also notes that the applicant is unlikely to be able to live her life in China as an openly gay woman because of her familial relationships and the anticipated discrimination.
·[Dr E] also considers that the applicant is naïve, unprepared and ill-equipped to negotiate any difficulties she may encounter in China related to her sexual identity.
·Attitudes of the applicant’s family to homosexuality are consistent with the broader attitudes within China towards homosexual people, who still face discrimination and harassment on a societal and authoritarian level. Regardless of whether the applicant decided to sacrifice elements of her identity to maintain other aspects of her life such as familial relationships and living a ‘normal’ life in society, it should not be expected or accepted that she live ‘discreetly’ or hide her sexuality in order to avoid discrimination.
·The delay in [the applicant] raising this circumstance (her homosexuality) is not a relevant consideration. [The applicant] is not relying on her homosexual identity as a protection claim but rather is instead claiming that this is a relevant circumstance under ministerial guidelines.
·[The applicant]’s human dignity and human rights are at risk of denial on the basis of her particular characteristics and circumstances if she was to return to China.
(c) Consideration 3: Compassionate circumstances regarding the health and or psychological state of the person that if not recognized, would result in serious, ongoing and irreversible harm and continuing hardship to the person.
·The applicant’s psychological state represents a compassionate circumstance that would result in serious, ongoing and irreversible harm and continuing hardship if disregarded. The psychologist confirms that [the applicant] presents with themes of shock, anxiety, shame, avoidance, conflict and anger in relation to her family relationships, sexual identity and migration to Australia.
·The psychologist diagnosis is of an adjustment disorder with mixed anxiety and depressed mood after finding that her purported agent lodged a protection visa application without her consent but is also related to “cultural and familial tensions surrounding her sexuality.”
·According to the psychological report, the applicant perceives a greater level of discrimination and negative evaluation towards herself from the Chinese public as a gay woman of male-like appearance. She presented as naïve, unprepared and ill-equipped to negotiate any difficulties she may encounter in China related to her sexual identity. The Psychologist says that because the applicant’s position is that she will have to keep her homosexuality hidden for a prolonged period in order to protect her family relationships, return to China will likely have an enduring negative impact on her mental health and wellbeing. The psychologist acknowledges that the applicant will have to deal with some of those issues even whilst in Australia – but considers that having to do so in the socially constricting and intolerant atmosphere in China will nonetheless potentially negatively impact on her mental health.
·[Dr E] reports that the applicant’s psychological prognosis is likely to be improved, although not resolved, if she is permitted to remain in Australia, where she would be able to live more freely and openly as a homosexual female without the risk of prejudice than compared to returning to China. “Whilst the conflict with her family surrounding her homosexuality is likely to be ongoing, she perceives that she can live with greater freedom and ease as an openly gay woman within the Australian community where she believes there to be little prejudice towards her.”
I found the applicant to be a credible and reliable witness. She gave the majority of her evidence in English, and clearly had a strong understanding of the language such that I had no concerns that she misunderstood any of my questions or that she was able to freely express her case. At the conclusion of the hearing, she and her representative both confirmed that they had no issues with the fact that the hearing had been largely conducted (after the legal preliminaries) in English.
As I indicated at hearing, I considered that, regardless of the applicant’s desire to have her matter referred to the Minister, I must nonetheless consider her claims and evidence and make my own decision about whether she met the criteria for a protection visa. To that end, we discussed her personal and migration history and those abandoned claims in her written application in some detail.
The information and evidence before me reflects that the applicant is a lesbian woman who dresses in a masculine manner and has been diagnosed by a clinical psychologist as having a clinically significant adjustment disorder with anxiety and depression, coping strategies of avoidance and denial; and that she is naïve, unprepared and ill-equipped to negotiate any difficulties she may encounter in China related to her sexual preference.
In her statutory declaration, and her oral evidence, the applicant raised the following matters:
·She said that she did not knowingly apply for a protection visa. The agent, [Mr D] formerly of [Business Address 1], has disappeared after she paid him a total of $25,000 (by two payments of $5,000 and $20,000) to apply for a further student visa. He instead lodged a protection visa with completely made up claims. At hearing she advised that he told her he was a Taiwanese man of Chinese ethnicity.   In response to my questions about what she knew of whether he had lodged false claims for any other students, the applicant said that she put a message on the Chinese message boards and was contacted by one other student who had paid [Mr D] for a student visa application – but [Mr D] had instead lodged a protection visa application. In that student’s case, the applicant thinks that the student discovered the error before his student visa had expired and so was able to withdraw the protection visa application in time to avoid being barred from applying for a further student visa. The applicant said she never thought to report [Mr D] to police. She didn’t feel confident about the law in Australia, but instead has just been focussed on trying to salvage what she could from the damage he has done.
·She only discovered what [Mr D] had done in early 2015 when she went in to the Department to enquire about her immigration status, as she hadn’t heard about her new student visa. She was told she held only a bridging visa which did not allow multiple departures and returns from and to Australia, due to her lodging a protection visa.   At that time she had been intending to travel home to see her family but has not been able to do so due to her visa status.
·At the time she had given [Mr D] instructions to apply for her student visa, her existing visa had not expired. However by the time she discovered what he had done, she was already on a bridging visa and was therefore precluded by the legislation from applying for the student visa that she actually had always intended to apply for.
·The applicant has not formally come out to her parents. She thinks that her mother ‘suspects’ the truth about her homosexuality, but would prefer not to have it confirmed. Around two years ago, her mother visited her and saw that she was living with her girlfriend. When her mother talked about the applicant getting married (to a man), the applicant started to talk to her mother about why she wouldn’t do so. Her mother cut her off, saying it was ‘ok’ if a woman didn’t want to marry, but she would never accept that her daughter was gay, and also that she would kill herself if that ever happened to her. At hearing the applicant confirmed that she believes that, if she were to return to China, she would have to keep her sexual preferences to herself to prevent causing distress to her family and by extension, to the applicant.
·The applicant gave evidence that, if she was to return to China alone, she would simply live with her family and keep her personal life from them. In response to my question as to whether she thought that living like that and concealing her homosexuality would cause her harm, the applicant said it would be just the same as it was before she came to Australia. She would hardly see her parents, as they all went their separate ways during the day, anyway.   She also noted that if her partner, [Ms A], was to return to China with her, they would live together (away from their families). She did not foresee any difficulty in them renting accommodation together, saying that she is aware that it is quite common for women to share accommodation, (implying that two women sharing would not of itself be likely to attract attention, discrimination or disapproval). The applicant said that she did not fear being subjected to discrimination due to her sexuality in accessing services in China or in finding employment, though the applicant did note that she would not disclose her sexual preferences in the workplace, just in case it might open her up to rejection, because employers and fellow employees might not want to employ or work with a homosexual. I consider this indicates that the applicant anticipates only low level discrimination in finding accommodation and in the workplace due to her sexuality.
·The applicant was asked if she feared being subjected to harm by her family if they were to discover (or if they confirmed) that she was gay. She was specifically referred to the reports concerning ‘conversion therapy’ referred to in the written submissions before me as filed by her representative. The applicant said she was not afraid of being harmed by her family. She said that she was her mother’s only daughter and she was confident that her mother would not tolerate any harm being inflicted on her and would not force her to undergo such therapy. She was only fearful that her parents would be upset and that her mother may harm herself due to her distress and her father reject her or harm himself out of shame if they discovered that she was gay. She also feared the distress she herself would feel if they came into conflict about this issue and due to the potentially damaged relationship with her family.
·The applicant was asked if she had ever experienced harm in China due to her sexuality. She said that when she was younger, her paternal grandfather saw her kissing another girl and called her mother straight away. They were all angry about it, but the applicant denied that she was gay and they accepted that. She said however that she felt constantly judged in society because she chose to dress in a more masculine manner. When she was in a relationship in China she and her girlfriend limited any displays of affection due to a fear of being disapproved of by community members. The applicant agreed that she had not been assaulted or abused or suffered harm in China due to her sexuality. I discussed the country information (from DFAT) which suggested that there is a moderate risk of discrimination but a low risk of violence against LGBTI community members in China, and the applicant agreed that this accorded with her own view and was a fair assessment of the situation there. I also noted that, according to DFAT, there is some risk of harm from family members and the applicant confirmed that in her own case, she did not fear harm from her family apart from any distress caused by potential arguments.
·The applicant confirmed that she was receiving ongoing psychotherapy due to anxiety. She had not received such treatment in China but was aware that mental health services are available there and believed that she could access them if she were to return and needed to do so.
·In the applicant’s submissions from her representative, updated information was provided that the applicant’s long term relationship with [Ms A] had ended. At hearing, [Ms A] attended and supported the applicant and she and the applicant confirmed that they had reconciled and were in a committed and ongoing relationship.
·The applicant gave evidence that she is asking that the matter be referred to the Minister for intervention as she is seeking that she be granted a student visa so she can complete her studies in [Discipline 1]. She expressed a strong desire to be able to visit her family in China.

Based on the evidence before me, I accept that the applicant is a Chinese citizen, and that China is the country of reference and the receiving country in considering her protection claims. The evidence before me does not suggest that she has a right to enter and reside in any country apart from China and I find that she does not. Based on her evidence at hearing, I find that she has abandoned the whole of the written claims lodged in her application for protection (namely that she fears persecution as a Christian in China, and that she has experienced harm in China due to her Christianity.) I find, based on her direct evidence, that those claims were fabricated by a ‘rogue’ agent and that she is not a Christian, and that there is no chance or risk that she will suffer harm of any kind in China due to her religion (or lack thereof).
I accept that the applicant is a homosexual woman who is in a committed and long term personal relationship with another woman. She chooses to dress in what she acknowledges is observed to be a ‘masculine’ manner. Nonetheless, and based on her evidence and submissions, I accept that the applicant never intended to lodge a protection application and that she does not claim to fear persecution in China because she is a homosexual woman (who dresses in a masculine manner) or for any other reason. Nonetheless, the submissions made by her representative suggest that ‘even though it is accepted that the applicant does not meet the criteria of a refugee for the grant of a protection visa’, her particular circumstances and personal characteristics provide a basis for believing that there is a significant threat to her personal security, human rights or human dignity if she returns to China sufficient to enliven the Minister’s power to intervene. I have therefore considered whether there is an objective basis for the claim that she faces a significant threat to her personal security, human rights or human dignity in assessing her claims.
The applicant’s representative referred to country information and an AAT case decided by Member Paxton on 5 October 2017 where the member found that discrimination occurs against homosexual people in China, even though that discrimination did not meet the definition of serious or significant harm.
On considering the country information generally as discussed with the applicant and as referred by the applicant’s representative, I do accept that there is some chance that the applicant may face low level official and societal discrimination and disapproval (including in finding employment and accommodation) if she returns to China and lives openly as a homosexual woman and decides to dress in a masculine manner. I also accept that, if she lives openly as a gay woman in China, she may experience some emotional conflict with her family, causing her some distress. I also accept, based on [Dr E]’s report, that the applicant suffers from anxiety and an adjustment disorder and that she may experience deterioration in her mental health due to the pressure of managing her own expectations, her family expectations and those of society on return to China. I have borne in mind the psychologist’s advice that the applicant uses avoidance as a coping mechanism, and that she is naïve and ill-equipped to face life in China as a gay woman. I note and accept DFAT’s position that societal discrimination against LGBTI people exists but varies in frequency and severity depending on the location. According to DFAT, people in larger, wealthier cities in China, such as Beijing, Shanghai and Guangzhou have greater tolerance for LGBTI People. I also note and have taken into account the evidence before me which reflects that the applicant’s family lives in Beijing and she was born there.
Even though the applicant’s evidence and submissions specifically submit that she does not have a real chance of suffering serious harm or a real risk of suffering significant harm in China, (due to her homosexuality, her decision to dress in a masculine manner or for any other reason), I have considered the applicant’s claims that she will potentially suffer some harm in the form of societal disapproval, prejudice, discrimination in employment and accommodation, emotional distress linked to conflict with her parents and potential deterioration in her mental health and whether those harms, if they are experienced, would amount to causing the applicant serious harm. Examples of serious harm are described in s.91R of the Act, as including a threat to the person’s life or liberty, significant physical harassment or ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services or of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The applicant’s household registration and the applicant’s evidence suggest that she would be returning to Beijing, either to the home of her parents or to private accommodation. As noted above, Beijing is one of the cities named as having greater tolerance for LGBTI people. The evidence before me as a whole suggests and I accept that it is possible that the applicant may experience some discrimination in the form of prejudice or societal disapproval in finding employment or accommodation if she lives openly as a gay woman, and one who continues to prefer to dress in a masculine manner. However, based on her own evidence and the country information about variability of discrimination (and that the community is more tolerant in large cities like Beijing) I consider that the level of discrimination and prejudice she may experience would only be of a low level and would not cause her to be unable to find work or accommodation at all. The evidence does not establish and I do not accept that there is a real chance that she will face a denial of health or other basic services for any reason. I am not satisfied that the low level discrimination at work or in finding accommodation which may occur would be so severe as to threaten her capacity to subsist.
I have carefully considered [Dr E]’s opinion that the applicant may have a tendency to minimise or ignore potential difficulties she may face in China and the applicant’s own evidence that she does not fear persecution due to her sexual preference in China from her own family or the community more widely. Whilst I respect [Dr E]’s opinion, I prefer the applicant’s own assessment based on her personal (and direct) experiences growing up and living as a gay woman in China. I also note that [Dr E]’s report appears to be premised on the applicant applying to remain permanently in Australia, which directly contradicts the submissions of the representative and also the evidence of the applicant about a desire just to remain to finish her studies. The applicant before me clearly stated that she intends to return to China once her studies are finished and I consider that the doctor’s opinion must be tempered by that evidence, even allowing for some ‘denial’ or ‘naivety’ in the applicant’s assessment of life in China.
I have also noted DFAT’s assessment that societal violence against LGBTI people is generally low, (although I have noted their assessment that lesbian and bisexual women are at risk of violence by family members and spouses, and that the rates of mental health issues amongst the LGBTI community are high). I note and accept the applicant’s evidence that she does not fear harm from her family members. Whilst I accept [Dr E]’s general diagnosis and opinion, I do not accept that the risk to the applicant’s mental health in China, and the low level societal and official discrimination she will face (whether she chooses to live openly as a gay woman and dress in a ‘masculine manner’ or whether she chooses to hide her sexuality) is so substantial a threat to the applicant’s mental health, dignity and self-respect that it amounts to causing her serious harm. I have considered the applicant’s written submissions made by her legal representative, but do not accept that the discrimination, family conflict and mental health deterioration that the applicant may experience in China would be at a level which can be characterised as amounting to a significant threat to her personal security, human rights or human dignity.
I also note and accept DFAT’s assessment and the applicant’s own evidence that mental health treatment is available in China and that, if necessary, the applicant would be able to access that treatment in the event that she does experience some anxiety and depression on return to China. The information and evidence before me does not suggest that access to health and other basic services would be denied to the applicant for any reason.
I have made this assessment of the level of harm the applicant may suffer on the assumption that the applicant lives openly as a gay woman (who dresses in a masculine manner) and not on the basis that she may choose to hide her sexuality. I acknowledge her evidence that she would choose to live ‘discreetly’ to reduce even further the risk of facing discrimination on the basis of her sexual preference but that is her choice and I have assessed her claims on the basis that she would live openly without requiring her to modify her behaviour to avoid persecution. I have also taken into account [Dr E]’s opinion that a choice to hide her sexuality (and thus live a secret life) may also increase the chance of the applicant suffering some deterioration in her mental health, however, as stated above I find that she will be able to access mental health services and would not be denied access for any reason. After taking all of these factors into account, I find that the harm faced by the applicant (experiencing some family conflict, mental health deterioration, some social discrimination and disapproval in employment and accommodation) would not amount to causing the applicant serious harm, even considered cumulatively.
According to section 91R (1)(b) of the Act, Article 1A(2) of the Refugee convention as amended by the Refugees Protocol does not apply unless the persecution involves serious harm. I find that the persecution in this case does not involve serious harm. Consequently, and having taken all of the applicant’s evidence, claims and submissions into account, I find that the information and evidence before me does not establish that there is a real chance that the applicant will suffer persecution in China due to her being a gay woman, because she dresses in a masculine manner, or because of her mental health or for any other reason, now or in the reasonably foreseeable future.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary Protection
As noted above, I have considered the harm feared by the applicant in China if she lives openly as a lesbian woman and continues to dress in a masculine manner (experiencing some family conflict, mental health deterioration, social discrimination and disapproval in accommodation and employment.) I have considered the applicant’s own evidence and that of her psychologist that the applicant may experience some harm in China in the form of deterioration of her mental health due to the experience of hiding her sexuality from her family and society (if she chose to do so) and in negotiating potential conflicts arising on this issue. I note the report provided by [Dr E] and her view that the applicant is not fully cognisant of the potential harm she will experience if she returns to China and I accept [Dr E]’s view that because of the applicant’s position that she will keep her homosexuality hidden for a prolonged period in order to protect her family relationships, her return to China will likely have an enduring negative impact on her mental health and wellbeing, and that due to her own choices, she will not be free of some of those impacts even while she remains in Australia.
I note and accept the availability of mental health treatment in China, (as acknowledged by the applicant herself and reported in the country information) and the country information referred to above and as referred to in the submissions provided by the applicant’s representative about the situation for homosexuals generally in China. I also note the applicant’s love for and desire to return to her family (who live in Beijing) even in light of their potentially strong disapproval of her sexuality, and her evidence that there is no risk of physical harm (including forced psychiatric treatment involving conversion therapy) from them on her return, even if she were to live openly with her partner as a gay woman in China.
I accept that there is some risk that the applicant will suffer discrimination, distress and potential deterioration of her mental health on return to China due to her homosexuality, (whether or not she chooses to live openly as a gay woman) particularly if her family confront and pressure her about conforming to societal expectations. I have also noted [Dr E]’s concern that having to live in China and suppress or hide her sexuality (from her family and or the broader community) will potentially cause a deterioration in her mental health. I have considered the definitions in s.5(1) of the Act and taken into consideration that cruel or inhuman treatment or punishment includes mental pain or suffering, and that degrading treatment or punishment is an act or omission which causes and is intended to cause extreme humiliation which is unreasonable.
However I am not satisfied that the level of harm for which there is some risk and which may be experienced by the applicant in China is at a level which amounts to cruel, inhuman or degrading treatment. I find that there are not substantial grounds for believing that the applicant will be arbitrarily deprived of her life, that she will be subjected to torture, or to cruel, inhuman or degrading treatment or punishment or that the applicant will be subjected to the death penalty on return to China. After taking all of the evidence and information before me into account, I am not satisfied that the real risk of harm faced by the applicant amounts to a real risk of the applicant suffering significant harm as that term is exhaustively defined in s.36(2A), even when the harms are considered cumulatively.
The information and evidence before me does not suggest any other reason why the applicant would suffer significant harm as a necessary and foreseeable consequence of her being removed to China. I am not satisfied that there are substantial reasons for believing that, as a necessary and foreseeable consequence of her being removed to China, there is a real risk that the applicant would suffer significant harm.
I am 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).
Ministerial Intervention
The applicant has requested that the Tribunal refer her case to the Minister unders.417 of the Act.
In a detailed written submission provided to the Tribunal, the applicant’s representative argues that there are unique and exceptional circumstances which warrant the referral of the applicant’s case to the Minister for his personal consideration. Those circumstances are summarised above in paragraph 13.
Having regard to the Minister’s guidelines on ministerial powers as well as the submissions and evidence before me, I consider that the circumstances of this case warrant further investigation by the Department, with the view to then referring the case to the Minister. I consider that the issues in this case fall within unique and exceptional circumstances as described in s.4 of the guidelines:
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·             strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·             compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·             exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
·             circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
·             the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·             a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·             the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
In reaching this conclusion, I have had regard to the following considerations:
·I found the applicant’s evidence about being the victim of an unconscionable ‘migration agent’ to be compelling and credible. I note the submissions of her representative, referred to above, that the agent was not acting within his actual or ostensible authority in lodging an incorrect visa application. The applicant has been unable to locate the agent and would be highly unlikely to be in a positon to prove that he has acted fraudulently, given that fact. It seems, based on her evidence, that the applicant may have signed the application for a protection visa without properly checking its’ content. In Maharjan v MIBP [2017] FCAFC 213, the court addressed the issue of fraud on the part of an agent invalidating the visa application process, finding that fraud would first need to be established and then that it would need to stultify the processes the Act prescribes in order for the visa application to be invalid.
·I do not consider that the actions of the agent rise to the level of fraud so as to invalidate the visa application. Nonetheless, the agent’s conduct in lodging a protection visa application instead of a student visa has had the effect of inhibiting the applicant’s capacity to travel to and from China and barring her capacity to renew her student visa and to complete her studies in Australia.
·The actions of the ‘migration agent’ are more serious than simply failing to lodge an application for the applicant’s student visa ‘on time’. It appears that the applicant has been misled by a person impersonating a qualified (and competent) migration agent who charged her $25,000 but did not provide the services for which he was paid. By filing a protection (not further student visa) application and failing to tell her that he had done so, critical time limits were exceeded with the applicant in complete and understandable ignorance of the true nature of her visa status, and thinking she had acted within time frames as needed and in accordance with Australia’s visa requirements for student visas. Whilst the legislation may anticipate that agents may fail to act in a timely fashion from time to time, this is not the same as agents pretending to be registered migration agents and taking large sums to lodge one visa and then lodging entirely another, prejudicing the visa applicant’s migration status. Such a situation is not anticipated by the legislation, and satisfies the requirements under the guideline at bullet point four above.
·The psychologist report makes clear the writer’s opinion that the applicant does not fully recognise or appreciate the difficulties and harms she will encounter in China if she returns and decides to keep her sexuality hidden from her friends and family as she anticipates. The psychologist acknowledges that the applicant will have to deal with some of those issues even whilst in Australia – but considers that having to do so in the socially constricting and intolerant atmosphere in China will nonetheless potentially negatively impact on her mental health. Even though I have taken the ongoing low level discrimination and the probability of coming into conflict with her family into account in assessing the application under the protection criteria and found that there is not a real chance that the applicant will suffer serious harm or that there is a real risk that she will suffer significant harm in China, I am nonetheless satisfied that there is some chance and some risk that she will experience some discrimination and potential deterioration in her mental health on return to China.
·I consider that the applicant’s circumstances, when considered together, amount to unique and exceptional circumstances as mandated by the Ministerial guidelines.
DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.
Anne Grant
Member