1700793 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant claimed she feared persecution in China due to her religion and her identity as a homosexual woman who dresses in a masculine manner. The applicant also alleged she was the victim of an unconscionable migration agent who lodged a protection visa application instead of a student visa, thereby prejudicing her migration status and ability to complete her studies in Australia. The applicant sought Ministerial Intervention.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth), which includes assessing whether she had a well-founded fear of persecution for reasons of religion or membership of a particular social group, or whether there was a real risk of significant harm if removed from Australia. Additionally, the court had to consider whether the actions of the migration agent constituted unique or exceptional circumstances that warranted special consideration, particularly in light of the applicant's mental health condition and the agent's conduct.

The Tribunal found the applicant's evidence regarding the migration agent to be compelling and credible. While the agent's conduct did not amount to fraud sufficient to invalidate the application under the principles in *Maharjan v MIBP* [2017] FCAFC 213, it was found to be more serious than a mere failure to lodge an application on time. The agent's actions, including impersonating a registered agent and lodging an incorrect visa application without the applicant's full knowledge, prejudiced her migration status and ability to study. The Tribunal also considered the psychologist's report, which indicated that the applicant would likely experience negative impacts on her mental health due to discrimination and social intolerance in China, even if she attempted to conceal her sexuality. Despite finding that the applicant did not meet the threshold for persecution or significant harm under the protection criteria, the Tribunal was satisfied that there was some risk of discrimination and deterioration in her mental health upon return.

The Tribunal concluded that the applicant's circumstances, taken together, amounted to unique and exceptional circumstances as contemplated by Ministerial guidelines. The decision under review was affirmed.