1711545 (Refugee)

1711545 (Refugee) [2022] AATA 556 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711545
COUNTRY OF REFERENCE:                   Mexico
MEMBER:Meena Sripathy
DATE:28 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that that applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 28 January 2022 at 11:42am
CATCHWORDS
REFUGEE – protection visa – Mexico – religion – fear of harm from obsessively Catholic mother – physical, psychological and emotional abuse – started practising Buddhism in Australia after traumatic incident – mother now deceased, and little contact with family – member of particular social group – single woman from poor background with disability and mental illness and little or no family support after long absence – credible and honest witness – country information about gender-based violence and harassment – no effective state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (5), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Rajasundaram v MIMA (1998) 51 ALD 682
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 May 2017 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 a citizen of Mexico applied for the visa on 3 June 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will face a real chance of serious harm for one or more of the reasons specified in s5J(1) and therefore does not meet the refugee criteria, or that there are substantial grounds for believing there is a real risk she will suffer significant harm for the purposes of the complementary protection criteria.
The issues in this case are whether there is a real chance, if the applicant returns to Mexico, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; or if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Mexico, there is a real risk that she will suffer significant harm.
The applicant appeared before the Tribunal on 5 October 2021 by video conference using the MS Teams platform to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The applicant did not raise any objection or issue about appearing by video mode. She did not request an interpreter, and the hearing was conducted directly in English. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CRITERIA FOR A 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 (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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in the application form includes the following. The applicant was born in Puebla , Mexico in [Year] and is a Mexican national. Information in the application form indicates she has parents and a brother and sister who reside in Mexico. She states her religion as [Branch of] Buddhism and her occupation is in [an] industry. She departed Mexico in September 2008 and came to Australia on a student visa. She renewed her Mexican passport in [2010], and it was valid until [2020]. She gave one residential address in Puebla, Mexico from birth until September 2008 when she departed to come to Australia. In Mexico she completed a [course] in 2002, and was enrolled in but withdrew from a Bachelor degree in [Subject 1]. In Australia, she completed an English course from September – December 2008 and a Certificate IV in [Subject 2] in Australia from September 2013 – June 2014, and provided details of various jobs in the [industry].
In her reasons for claiming protection, the applicant stated the following. She left Mexico to come to Australia to learn English and study and to escape from an abusive home life in Mexico. She comes from a poor family in Puebla. Her mother who is obsessively Catholic, was always physically and psychologically abusive towards her as a child. The applicant suffered depression but did not receive proper treatment. If she returns to her country she will have to live with her family and return to the abuse that she was exposed to in the past. She will be unable to practice her religion, [Branch of] Buddhism as she can here because of her family’s obsession with Catholicism. She is committed to her activities with [an] Organisation in Australia and wants to continue with it here. She cannot access help in Mexico because physical and psychological abuse in families is common and there is no protection from the authorities. She cannot live elsewhere because it is hard and dangerous for a young woman on her own to live away from family.
The applicant submitted a Statutory Declaration dated 2 June 2015 providing further details of her claims. She referred to a traumatic incident that she experienced in 2012 in Australia, where she was invited out for drinks with a work colleague and found herself in a vulnerable and dangerous situation. She managed to escape but believed that she may have been followed home and rang 000 and the police attended. She subsequently went to stay with a friend because she no longer felt safe at home. She experienced trauma following this incident and was unable to work or study, leading to the refusal of her student visa. Since being in Australia she commenced the Buddhist practice of [Branch of Buddhism] and joined the [Organisation] and has become an active member of the Young Women’s Division. Her Buddhist practice is the best thing that has happened for her and a strong part of her life in Australia and her support structure here. It has given her the strength to deal with the psychological and physical abuse she experienced growing up. She attaches numerous character and support letters from members of the organisation. The applicant claims that if she returns to Mexico she will have to return to her family as it is not safe for a woman to live alone or without a man’s protection, particularly if one is not wealthy. She attaches country information in support. She will have to return to the physical and emotionally abusive family home, and as a woman with a disability and mental illness she will be at risk of degrading treatment and violation of her human rights and even sterilisation. She attaches a psychiatrist’s letter in support. She needs further psychological help which she won’t be able to get in Mexico. She will be unable to practice her religion in her home because her mother will not allow it and may punish her or send her for another exorcism, believing she is possessed by the devil. The Buddhist group here has become her family here and are willing to sponsor her and take responsibility for her. She is dedicated to pursuing her studies and will be able to support herself financially as she has been to date. She seeks Australia’s protection due to her exceptional circumstances.
The applicant submitted the following supporting documents with her application:
·Statutory Declaration of [Ms A] dated 1 June 2015, friend and support person of the applicant
·Statutory Declaration of [Mr B] dated 30 May 2015, friend and support person of the applicant
·Letter dated 20 April 2015 from [Dr C], Psychiatry Registrar for [Dr D], [Mental Health Services] referring to the applicant’s presentation to the service on 13 April 2015, and the history she provided of her past experiences and present concerns.
·Letters dated 20 May 2015 and 17 May 2015 from [Mr E] and [Mr F], of [Organisation], confirming her involvement as an active member for the past 5 years.
·Country information to support her claims including: Mental Health Atlas 2011-Department of Mental Health and Substance Abuse, World Health Organisation, Mexico ; “Women’s Struggle for Safety and Justice – Violence in the Family in Mexico” Amnesty International, August 2008.
·Copies of education qualifications in Australia: Certificate IV in [Subject 2], [September] 2013 – [June] 2014, [Institution 1]; Advanced Diploma of [Subject 3], issued August 2011, [Institution 2].
The applicant attended an interview with an officer of the Department on 3 May 2017 to discuss her protection claims. The Tribunal has listened to the audio recording of the interview, which is included in the Department file. Details of the information provided at the interview are set out in the delegate’s decision record.
On 5 May 2017 the delegate refused the application, on the basis of not being satisfied that the applicant faced a well founded fear of persecution for the purposes of the refugee criteria or a real risk of significant harm for the purposes of the complementary protection criteria.
Evidence before the Tribunal
The applicant gave the following evidence to the Tribunal at the hearing on 5 October 2021. She lives in share accommodation with two flatmates. She has been working for the past years since she obtained work permission. She is not currently working due to COVID 19 restrictions, but prior to that she was working at a [Workplace] for about 4 months. When she had no work permission she managed living off her savings and also with some help from friends in Australia. She did not receive any financial support from overseas. She stated that she is single and she has no relatives in Australia.
The Tribunal asked about her family in Mexico. She said her mother passed away a few years ago. She is not sure of the exact date but it may be around 2019. She was informed of the news of her mother’s death after it happened, by her sister. She had been ill for a while. Her father continues to live in Puebla. He now lives with her sister and her sister’s young child. Her sister is not married. Her brother lives elsewhere but she does not know where. She has little information about him. Her sister told her some years ago that he left the seminary and is no longer a priest. Her father told her that he studied to be [an Occupation 1] but she has no other information. She told the Tribunal she has little contact with her family. She speaks to her father once every 6 months or so. She contacts him through her sister. The Tribunal asked why she has a poor relationship with her sister. She said it is because of ‘family issues’. They never had good relations. None of the family have good relationships because of their shared history. When her mother was sick and passed away, the applicant’s relationship with her sister got worse. It may have been because she was resentful of her for not being there. The applicant said she had no contact with her mother before she died.
The Tribunal asked about extended family. She has no living grandparents. She has no close relationships with any uncles, aunts or cousins on the maternal or paternal side of the family. She has no knowledge if any of her relatives have left the country or live outside of Puebla.
The applicant confirmed she lived all of her life at the one address in Puebla, which was the family home. Her sister and father live in that property now and as she understands it belongs to her sister. Prior to coming to Australia she was studying for a bachelor’s degree in [Subject 1]. She did not complete that course. She came to Australia for an internship related to the course but decided to stay and so she did not complete the rest of the course. Prior to this she had studied a [course] and worked for a year or so as a [Related occupation 2]. She lived during this period in Cuernavaca, with other [Occupation 2s]. She ceased this work because she did not like the environment. She was very young at the time and there was a lot of alcohol and most of her co-workers were older. She returned home to live with her parents and continued her studies. Her father paid for her university and her parents welcomed her home.
The applicant’s father was an [Occupation 3]. She believes he is no longer working. He supported her education and also supported her to come to Australia in 2008. Her mother did not know about this plan until after she left. Prior to coming to Australia she had travelled to [Country] once for about 4 days, as part of her studies.
She originally came to Australia to do English studies and an internship. She decided to stay and did other courses. Her last course was a Certificate IV in [Subject 2] which she completed in June 2014. She has not studied since then until now. She started a Certificate in [Subject 3] in September 2021.
The Tribunal asked who financially supported her subsequent student visa applications in Australia. She said she supported herself for all of these applications. Her father only supported the first student visa application she came here on. After that she never asked for his support.
The Tribunal asked about her passport history. She renewed her passport at the embassy in Canberra in 2010. This passport expired in [2020] and she has not renewed it since because of COVID 19 restrictions. She had no issues renewing her passport previously and does not believe there will be any issues to do it again.
The Tribunal discussed with the applicant her protection claims. She said all of the family suffered abuse as children at the hands of their mother. It is also very hard to live alone as a a single woman without male support in her country.
The Tribunal asked her to elaborate on the claims of past abuse at the hands of her mother. She said she hit them badly when they were children and also harmed them psychologically. She abused all the children, probably her brother the most and sister the least. Her father never intervened or did anything to support them. He was aware of what she was doing but did not protect them. The Tribunal asked if she or any of them were ever hospitalised as a result of the abuse. She said no one was ever taken to hospital. The Tribunal asked if the police ever attended or were called. She said they were not. She never told anyone about what happened at home, such as teachers. The abuse started from a young age, as young as 4 or 5 years and continued right up until she left. When she was older, it was harder for her mother to physically hit her but she still caused pain.
The Tribunal asked the applicant why she returned to live with her mother and parents in this case after she left to work as [an Occupation 2]. She said she was young then and the environment was not good for her there either. Although she experienced no particular incident during her time as [an Occupation 2] she left this job because it was unhealthy.
The Tribunal noted that her mother has since passed away, and asked why she can’t return to Mexico now? She said she has no home to go back to because it belongs to her sister and her relationship with her is bad. Her life is in Australia now. She has not been back for 13 years and she has nothing there. She also fears danger there as a young woman on her own.
The Tribunal asked the applicant about her Buddhist practice. She described [Branch of] Buddhism and that she has been practising now for nearly 10 years and this community has supported her. The Tribunal asked her to describe how she practices her religion. She referred to the chanting and the philosophy of the religion. They have local group meetings and also meet at [a Venue] in [Location]. Through COVID 19 they have been conducting all of these meetings via Zoom.
The Tribunal noted that [Organisation] is a global organisation and asked if she has explored whether it operates in Mexico. She said she has not explored that as yet but understands it is an international organisation. The Tribunal put to her that it has looked at information on the internet and it indicates that they have a presence in Central and South America. It asked her why she cannot continue to participate in the religion and organisation from Mexico. She said previously she would have had difficulty practising her religion because of her mother’s strong Catholic beliefs. But she agreed that this is no longer an issue now she is deceased. For this reason she conceded that she no longer fears return due to her religion. Her main fear now is that she has no where to return to and it is dangerous for her as a young woman alone.

The Tribunal asked why her father would not support her given his past support. She said he is old now and is himself dependent on her sister. Her sister would not support her. The Tribunal put to her she has not really explained why. The applicant said she just would not, it is the way things are.
The applicant said she has been here for many years and has not returned to her country at all. She would be like a foreigner going back there. She wants to stay here and finish her education. The Tribunal noted she said the same thing in 2015 before the MRT in her student visa application but did not complete any further courses.
The applicant stated that in addition to this she has had many mental breakdowns because of what she has been through here and mental health services are not readily available in Mexico. The Tribunal noted she had provided one letter about her mental health with the application and asked if she had sought any further services since then. She said she has not because she has not had the money to pay for it. She does not have a Medicare card and cannot pay for services or treatment. The Tribunal explained that it may not be satisfied there is sufficient evidence before it to support her claim that she would face a real chance of harm for reasons relating to her mental health and invited her comment. She said she hasn’t had money to seek services or treatment. She has suffered traumatic experiences in Mexico in the past and she fears return will trigger it for her again. She believes there is no mental health care in Mexico because people don’t believe in such care.
The Tribunal asked if there is any other reason she fears return to Mexico. She said there is not. It asked if she wishes to provide any other evidence in support of her claims. She referred to two witnesses who are available to speak to the Tribunal about what she has been through here and the stress it has caused her. The Tribunal explained the issue it is considering is whether and why she would face serious or significant harm on return, and therefore their evidence would not appear to be relevant to that. It invited her to submit statements if she wishes from these witnesses but it had no specific questions to ask them.
To date no further evidence has been received by the Tribunal.
Independent information
Violence against Women
The majority of reporting on violence against women in Mexico focuses on violence that occurs in domestic settings (particularly domestic violence). Reporting concerning violence against women in non-domestic settings concentrates primarily on femicides, which are particularly high in Mexico. Femicide (killing a woman because of her gender) is defined as a specific crime under federal law in Mexico, as indicated in the information below.
Amnesty International’s 2020 Report on Mexico stated:
During 2020, 3,752 killings of women were reported, 969 of which were investigated as femicides. Mexico state registered the highest absolute number of femicides, followed by Veracruz. Colima and Morelos states reported the highest rates of femicide per 100,000 women. Calls to the 911 emergency line to report incidents of violence against women rose during the year, with 260,067 calls up to December, compared to a total of 197,693 for the whole of 2019.[1]
[1] Amnesty International Mexico 2020 report >
In 2020, the National Statistics Agency (INEGI) estimated that 78 per cent of women do not seek institutional help or report violence to the authorities.[2] In February 2020, Mexico’s National Prosecutor stated that the rate of femicide had increased by 137 per cent over the last five years.[3]
[2] ‘Using Data to Shed Light on the Shadow Pandemic of Domestic Violence in Mexico’, Data-Pop Alliance, 27 October 2020, 20211026102957
[3] ‘Mexican government paralyzed in the face of a wave of femicides’, Human Rights Watch, 3 March 2020, 20211026103210
In April 2020, Reuters quoted the INEGI as stating that two-thirds of Mexican women had experienced some form of violence in their lifetime, with almost 44 per cent suffering abuse from a partner.[4] In 2016, the INEGI reported that 66 per cent of women over the age of 15 years old had experienced at least one incident of emotional, economic, physical or sexual violence throughout their life in at least one sphere (i.e. public or private).[5]
[4] ‘Murders of women surge amid widespread gang violence’, Reuters, 27 April 2020, 20211026103356
[5] ‘Using Data to Shed Light on the Shadow Pandemic of Domestic Violence in Mexico’, Data-Pop Alliance, 27 October 2020, 20211026102957
COVID-19, and the associated lockdown measures experienced in Mexico, has seen an increase in violence against women and demand for emergency hotline support and women’s shelters. The emergency ‘911’ hotline received almost 108,800 calls reporting incidents of violence against women between January and May 2020, an increase of 20.5 per cent compared to the same period during 2019.[6] The 26,000 calls to the hotline in March 2020 (the first month of COVID-19 related quarantine measures in Mexico) was the highest number since the creation of the hotline.[7] Calls to the hotline typically include reports of relationship aggression, sexual assault, sexual harassment, rape and intrafamily violence.[8]
[6] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25, 20210916115535
[7] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25, 20210916115535
[8] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25, 20210916115535
Regarding state protection for women fearing harm in Mexico, Amnesty International found that state protection for femicide victims in Mexico is inadequate. Reporting on the issue in September 2021, Amnesty International noted numerous systemic problems with police protection for femicide victims including that during investigations public servants lose evidence related to the case, the authorities do not carry out adequate investigations and a gender perspective is not applied correctly to such cases. The report further notes that pursuing justice for such crimes is financially and emotionally costly and is dangerous. Only four per cent of femicide perpetrators go to trial (most murders go unsolved in Mexico).
USDOS similarly notes that despite some legal protections, impunity for rape (including spousal rape), domestic violence and femicide is high in Mexico, although it also recognised this is consistent with high impunity rates for all crimes. The Report indicates federal law prohibits domestic violence and stipulates penalties for conviction of between six months’ and four years’ imprisonment. Of the 32 states, 29 stipulate similar penalties, although sentences were often more lenient. Federal law criminalizes spousal abuse, but it was noted that state and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.
The report noted that killing a woman because of her gender (femicide) is a federal offense punishable by 40 to 70 years in prison and it is also a criminal offense in all states. The law describes femicide as a gender-based murder under the following seven circumstances: signs of sexual violence, previous violence, emotional connection to the perpetrator, previous threats, harassment history, victim held incommunicado prior to deprivation of life, or victim’s body exposure.[9]
[9] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25 & p.26, 20210916115535
In March 2021, Freedom House reported that ‘sexual abuse and domestic violence against women are common, and perpetrators are rarely punished.’ [10]
[10] ‘Freedom in the World 2021 - Mexico', Freedom House, 3 March 2021, 20210312143323
In January 2021, Human Rights Watch (HRW) similarly states that ‘Mexican laws do not adequately protect women and girls against gender-based and sexual violence,’ noting that some provisions, including those that peg the severity of punishments for sexual offenses to the “chastity” of the victim, contradict international standards’.[11]
[11] ‘World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, p.456, 20210114072851
Freedom House states:
Implementation of a 2007 law designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm for the killers of hundreds of women each year. State authorities can issue “gender alerts” that trigger greater scrutiny and an influx of resources to combat an epidemic of violence against women, but the mechanism has proven ineffective. Femicides rose in the first half of 2020, and the COVID-19 pandemic led to a spike in domestic abuse complaints.
The government has made some efforts to combat violence and promote gender equality, but [President] López Obrador has also cut funding for women’s services and dismissed feminist protesters as aligned with the political opposition.
USDOS also highlights a lack of state resources for prosecuting cases of violence against women in Mexico. According to the report:
The Special Prosecutor’s Office for Violence against Women and Trafficking in Persons in the Prosecutor General’s Office is responsible for leading government programs to combat domestic violence and prosecuting federal human trafficking cases involving three or fewer suspects. The office had 30 prosecutors, of whom nine were exclusively dedicated to federal cases of violence against women.[12]
Sexual harassment
[12] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.26, 20210916115535
With regards to sexual harassment of women in Mexico, in March 2021 the US Department of State (USDOS) reported:
Federal law prohibits sexual harassment and provides for fines from 250 to 5,000 times the minimum daily wage, but the law was not effectively enforced. Of the 32 states, 16 criminalize sexual harassment, and all states have provisions for punishment when the perpetrator is in a position of power. According to the National Women’s Institute, the federal institution charged with directing national policy on equal opportunity for men and women, sexual harassment in the workplace was a significant problem.[13]
[13] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.26-27, 20210916115535
An article on Workplace Sexual Harassment in Mexico cited the latest Mexican Survey on Household Relationship Dynamics showed that 27% of the women respondents said that they had suffered gender-based violence in the workplace.[14] In relation to the effectiveness of the Public Administration grievance mechanisms, the article noted the Mexican Commission on Human Rights found in the 2015-2018 Diagnosis on Sexual Harassment, that between January 2016 and September 2018, 399 cases of sexual harassment cases were filed by 402 victims and only 1% of those cases resulted in a sanction for the harasser. This article also observes that of 1,317,959 reports by women of gender based violence in the workplace in 2016 indicated in the Mexican Survey on Household Relationship Dynamics, the National System Public Security National System’s Report on criminal records showed that only in 2015 14,763 investigations were opened for sexual crimes, including sexual harassment.
[14] Paulina Madero Suárez, Workplace sexual harassment in Mexico: towards gender-transformative remedies Can new, non-judicial approaches to gender-based violence and harassment in Mexico effectively supplement judicial avenues? Workplace sexual harassment in Mexico: towards gender-transformative remedies | OpenGlobalRights
The same article also discusses the 2019 Labour Law Reform in Mexico, establishing a series of non-judicial grievance mechanisms to redress sexual harassment in the workplace:
First, the law obliges businesses, as employers, to implement—with the participation of workers—a protocol to prevent and redress gender-discrimination, gendered-based violence, and sexual harassment, which must contain an operational grievance mechanism. Second, it establishes a pre-judicial state-based conciliation procedure that provides victims of sexual harassment in the workplace the option to bring their case before a conciliator (mediator) prior to submitting a judicial claim.
The author notes that the operational grievance mechanisms contained in employers’ protocols may yield potential in terms of preventing and redressing gender-based violence without facing the same constraints evinced by judicial avenues. However, data concerning the implementation and effectiveness of such employer protocols will be essential to better understand whether this potential is transformed into reality.
An article in 2019 regarding the Mexican wave of the #MeToo movement reports that 73% of female workers in creative and media industries have faced sexual harassment.[15] This article also references the widespread and extreme level of gender violence in Mexico, citing UN statistics of 9 women murders each day and one in 5 subjected to sexual violence, and states. The article cities an earlier article[16], that indicated sexual harassment in public places is also widespread, which in the capital Mexico City has led to women-only buses and train carriages but no adequate public policies to tackle the dangerous machismo that permeates every sphere of daily life for women and girls.
[15] Nina Lakhani, #MeToo reaches Mexico: majority of women in media report harassment at work | #MeToo movement | The Guardian 27 March 2019
[16] Citing an earlier article from May 2016, Mexico City mayor ridiculed over plan to fight sex crimes with plastic whistles | Mexico | The Guardian
Another article refers to an investigation by newspaper El Universal, regarding abuse and sexual assault of female hotel workers in particular in the state of Quintana Roo.[17]
[17] Mexico: El Universal's report reveals situations of sexual harassment and violence faced by female hotel workers in Quintana Roo - Business & Human Rights Resource Centre (business-humanrights.org)
Mexico has a network of shelters for women experiencing violence; however, demand for such services has reached unprecedented levels during the COVID-19 pandemic, with most at maximum capacity. The National Network of Shelters (a network of almost 70 refuges for female victims of violence), reported that during 2020 the network sheltered more than 12,000 women and children, a 77 per cent increase compared to 2019. Nationally, 69 of their 70 shelters were at maximum capacity, a 70 per cent increase compared to 2019.[18] USDOS notes that government funding for women’s shelters decreased during 2020, which directly affected their ability to provide adequate services:
According to multiple NGOs, due to COVID-19’s impact on the economy, funding sources for women’s shelters decreased. The government disbursed funding in March to more than 40 shelters and 30 attention centers, but in August shelter managers reported funding was running out. As a result some NGOs consolidated shelters, limited capacity, and predicted negative long-term impacts.[19]
[18] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25, 20210916115535
[19] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.26, 20210916115535
Regarding mental health support and services for female victims of child abuse and family violence, psychological support for female victims of violence is provided at Mexico’s network of state-funded Women’s Justice Centres. In June 2016, there were 25 such centres across 17 Mexican states. USAID reports these centres provide ‘legal assistance and victim support’ including ‘psychological counselling.’[20] In 2017, the Mexican authorities reported there were three Women’s Justice Centres in Mexico City and two in Puebla.[21]
Mental health services in Mexico City and Puebla State
[20] ‘MEXICO SHOWS DOMESTIC VIOLENCE SURVIVORS HOW TO MOVE FORWARD’, USAID, June 2016, 20211027131550
[21] ‘Mexico: Domestic violence, including legislation; protection and support services offered to victims by the state and civil society, including Mexico City (2015-July 2017)’, Immigration and Refugee Board of Canada, 11 August 2017, Mexico: Domestic violence, including legislation; protection and support services offered to victims by the state and civil society, including Mexico City (2015-July 2017)’
Reports indicate that the majority of Mexico’s mental health services are concentrated in Mexico City.[22] The most recent statistics from 2018 show that 41.8 per cent of all psychiatrists in the country practice in Mexico City.[23] An August 2020 report in the North American Congress on Latin America’s NACLA Report on the Americas journal confirms this information.[24]
[22] ‘Health Systems in Transition Vol 22, No 2: Mexico Health System in Review’, Block et al, North American Observatory on Health Systems and Policies & European Observatory on Health Systems and Policies, 2020, 20211026110035; ‘Facing Mexico’s Mental Health Fallout’, Duncan, W L et al, NACLA Report on the Americas, 52:3, pp.282-288, 20211026105653; ‘Physicians specializing in psychiatry of Mexico: An update 2018’, Salud Mental, Vol 42, Issue 1, January-February 2019, pp.13-23, at p.13, 20211026104123
[23] ‘Physicians specializing in psychiatry of Mexico: An update 2018’, Salud Mental, Vol 42, Issue 1, January-February 2019, pp.13-23, at p.18, 20211026104123
[24] ‘Facing Mexico’s Mental Health Fallout’, Duncan, W L et al, NACLA Report on the Americas, 52:3, pp.282-288, at p.285, 20211026105653
Limited detailed information was found about the availability and accessibility of mental health services in Puebla. A 2017 PhD dissertation by Kathryn Hale at the University of California stated there was only one public psychiatric hospital in the state.[25] A 2019 study published in the Salud Mental journal, found that as of 2018, there were 171 psychiatrists in the state of Puebla, equating to 2.68 psychiatrists per 100,000 people.
[25] ‘Psychiatric care in the hospital and the home in Puebla, Mexico’, Hale, K, 2017, p.2, 20211026104603
According to the WHO’s most recent Mental Health Atlas profile for Mexico, published in 2017, there is a shortage of mental health care professionals in Mexico with 4.40 mental health workers per 100,000 people. This is lower than the regional average. In 2017, the median number of mental health workers in the Mexican, Central American and the Latin Caribbean region was 10.9 per 100,000 people. [26] The same report indicates that cost represents a barrier for those wishing to access mental health care in Mexico, pointing out that patients pay at least 20 per cent towards the cost of mental health services and psychotropic medicines[27] and in regional areas patients may have to travel significant distances to access mental health care, transportation costs represent a major barrier to treatment. [28]
[26] ‘Atlas of Mental Health of the Americas 2017’, Pan American Health Organization and World Health Organisation, 2017, p.14, 20211028102005
[27] ‘Mental Health ATLAS 2017 Member State Profile Mexico’, World Health Organisation, 2017, 20211026104856
[28] ‘Community mental health care in Mexico: a regional perspective from a mid-income country’, International Journal of Mental Health Systems, 11 January 2021, 20211026105422
FINDINGS AND CONSIDERATION

On the basis of the evidence of her passport the Tribunal accepts the applicant is a national of Mexico and considers Mexico is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (see Guo, referred to above; Minister for Immigration and Multicultural Affairsv Rajalingam (1993) FCR 220; Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682). However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348)
In her application, lodged in 2015, the applicant claimed she left Mexico to come to Australia in 2008 to study English, continue her education and escape from an abusive home life. She referred to a background of coming from a poor, ‘obsessively’ Catholic family where her mother was physically and psychologically abusive to her and her siblings as children. Since being in Australia she commenced a Buddhist practice of [Branch of] Buddhism and has become actively involved in its [organisation]. She feared return to her country because she would have to live with her family and return to the circumstances of her past abuse and she would be unable to freely practice her religion in this environment. She also expressed fear of harm on the basis of the state of her mental health and not being able to access appropriate and adequate mental health care.
Before the Tribunal the applicant advised that her mother passed away sometime around 2019 and therefore she no longer feared harm from her mother. She stated her main reason now for fear upon return was the danger she would face as a single woman on her own. She claimed her sister and father would not support her and she would have to live independently and support herself which is dangerous and difficult in Mexico. Since the death of her mother she also no longer feared restrictions on her ability to practice her religion. She maintained her fear of harm on the basis of a lack of appropriate and adequate mental health care, though she acknowledged that she has not sought any services or treatment for mental health in Australia due to lack of funds.
Credibility and findings of fact
The Tribunal considers the applicant to be generally a credible and honest witness. She was forthright, candid and honest in giving her evidence to the Tribunal and did not seek to embellish or exaggerate her claims. On the basis of her written and oral evidence the Tribunal makes the following factual findings relevant to assessing her protection claims. It accepts she experienced physical and psychological abuse from her mother from a young age and continuing until she left Mexico for Australia. It accepts that she came to Australia for the purposes of study and to escape an abusive home life. While in Australia she applied for and was granted several student visas and completed several qualifications, the last of which was completed in 2014. She has not studied since 2014 but gave evidence to the Tribunal at hearing that she has recently commenced a course in September 2021. The Tribunal accepts, on the basis of her evidence at hearing, that her mother passed away around 2019 in Mexico from illness. She was informed of this by her elder sister, with whom she is in contact and through whom she maintains contact with her father, approximately every 6 months. In addition to her sister and father she has a brother in Mexico although she is not in contact with him. The applicant claimed she would be unable to access support from her father or sister if she returned but could not provide any convincing reasons for this. She stated, and the Tribunal accepts, she does not fear physical or psychological harm from her father or sister. She made no claim of fear of harm from her brother, nor is there evidence to support such a claim.
The Tribunal accepts that the applicant began practicing [Branch of] Buddhism since she has been in Australia and has been actively involved in [the organisation]. She was able to describe the beliefs and her practice in reasonable detail in her evidence before the Tribunal and has provided various letters to support her claims about this. Information obtained from open source material on the internet indicates that [Organisation] is an global organisation that is present in [Number] countries in the world[29], including Central and South America, and has a presence in Mexico.[30] Upon questioning by the Tribunal about whether she has explored the presence of the organisation in Mexico, the applicant acknowledged its global nature but that she had not enquired about it in Mexico.
[29] [Refence deleted])
[30] [Refence deleted]. They also appear to have a [Social media] page [Reference deleted]
As indicated above, before the Tribunal, at hearing the applicant amended the claims made originally in the application, given the circumstances of the death of her mother who was the original subject of her fear of return. Since her mother’s death, she no longer had any fear relating to the practice of her Buddhist religion.
The main reason the applicant now fears return is danger she claims she would face on the basis of her status as a single woman on her own.
The Tribunal accepts that the applicant left Mexico in 2008 and has not returned to her country since then. It accepts that when she left she was much younger, a full time student and was not employed. It is prepared to accept on her evidence, that in the intervening years she has had limited contact with her family members. If returning now or in the reasonably foreseeable future, she would be returning after a prolonged absence, with no job and uncertainty about the level of family support. While she has close family members there, namely, her father, who on her own evidence supported her in the past and from whom she has no fear of harm, a sister and brother and a family home in her home state of Puebla and has not really provided convincing reasons for why they would not support her, (at least initially by way of providing her accommodation in the family property if necessary) the Tribunal accepts that there is uncertainty about the nature and level of support that she could expect upon return.
The Tribunal has considered the applicant’s claim that her mental health is vulnerable given a history of mental health breakdowns in Mexico (as a result of experiences of family violence at the hands of her mother in her childhood) and in Australia (resulting from a 2012 incident where she narrowly escaped a possible sexual assault). She expressed concern that she would be able to access adequate or appropriate mental health services in Mexico. Regarding this claim the Tribunal notes the letter from [Mental Health Services] dated 20 April 2015 but observes no other evidence relating to her mental health was provided to the Tribunal. She told the Tribunal she has not accessed any other mental health services in Australia since her one presentation to RNS in April 2015 due to her lack of financial resources in Australia. The Tribunal observes that despite not accessing any mental health services here, she has been able to live independently and support herself and her studies over many years in Australia. In the absence of any further evidence about her mental health circumstances, and her capacity to live independently, work and study in Australia the Tribunal is not satisfied that her mental health circumstances on their own impair her ability and capacity to earn a living and subsist upon return to Mexico but it is prepared to accept and take into account that, given her past experiences, she suffers some mental health vulnerabilities.
Below the Tribunal has considered the applicant’s fear of harm on the basis of her gender, in light of the findings above regarding her profile and circumstances.
Fear of harm for a s5J(1)(a) specified reason- membership of a particular social group
The Tribunal accepts that applicant’s claimed fear of harm on return is on the basis of her membership of a particular social group. The country information before the Tribunal supports that the applicant’s circumstances brings her within any of the following groups: ‘women in Mexico’ or ‘single women’ or ‘single young women’ and that each of these are capable of constituting particular social groups within the meaning of that term in s5L of the Act, in that each of the members of the group share a characteristic which can be described as innate or immutable, which distinguishes the group from the rest of society and the shared characteristic is not the fear of persecution.
Therefore the Tribunal accepts the applicant fears persecution for one of the specified reasons in s5J(1) being her membership of a particular social group.
Is there a real chance the applicant will face serious harm for reasons of her membership of a particular social group
The applicant claims her life will be in danger if she returns to Mexico because she is a young single woman, with vulnerable mental health, with little or no family support. Above, the Tribunal found that the applicant, upon return in the reasonably foreseeable future, would be going back to Mexico after a prolonged absence, with no job and uncertainty about the level of family support she has there. It also accepted that, due to past experiences of family violence and a traumatic incident in Australia, she has some mental health vulnerability.
The Tribunal has considered general country information about violence against women in Mexico set out above, and accepts that gender based violence is prevalent in that country. For example, the 2021 Amnesty International report referred to the registration of 3,732 killings of women across the country of which 940 were investigated as femicides. The 2020 report from the National Statistics Agency stated that two thirds of Mexican women have experienced some form of violence in their lifetime. In 2021, Freedom House reported ‘sexual abuse and domestic violence against women are common, and perpetrators are rarely punished’. The 2021 Human Rights Watch World Report stated ‘Mexican laws do not adequately protect women and girls against gender-based and sexual violence’. Much of the reporting and information relating to violence against women in the Mexican context however relates to violence in the domestic setting. While femicide is specifically recognised as a crime in Mexico, punishable by 40 to 70 years in prison, the country information overwhelming indicates there is inadequacies in the level and efficacy of state protection.[31] Similarly with regard to sexual harassment, the 2021 US Department of State (USDOS) report states that while federal law prohibits sexual harassment and provides for fines, the law is not effectively enforced. The National Women’s Institute, the federal institution charged with directing national policy on equal opportunity for men and women, states that sexual harassment in the workplace is a significant problem.[32] Other articles and reports considered by the Tribunal and cited above confirm that sexual harassment and gender violence is widespread and extreme in Mexico.
[31]Justice on Trial’, Amnesty International, September 2021, p.5, 20210922111202
[32] 'Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.26-27, 20210916115535
Given the findings above regarding the applicant’s background and circumstances on return, the evidence does not support a finding that the applicant would face a real chance of being targeted for harm of a domestic or family violence nature. She does not claim to fear harm from her father, sister or brother on return and has no domestic partner in Mexico. The Tribunal considers the prospect of her being the victim of domestic or family violence in future at the hands of a future partner is too speculative and in that sense, remote.
However, the Tribunal is prepared to accept the applicant’s claim that she comes from a poor family and consequently that her family would be unable to support her upon return. This is consistent with her evidence that she has received no financial support form them since her arrival in Australia and has never returned to Mexico since coming her in 2008. Country information before the Tribunal also supports that Puebla is one of the poorer states in Mexico, with a substantial proportion of the population living in a situation of moderate or extreme poverty.[33] Therefore, the Tribunal accepts that she will need to go out and find work to support herself and in this context has considered whether she faces a risk of gender based violence in the form of sexual harassment on entering the workforce on return.
[33] Puebla: Economy, employment, equity, quality of life, education, health and public safety | Data México (datamexico.org)
The Tribunal notes the country information on this issue and it finds that as a single woman from a poor background, there is a real chance, in the sense of being substantial and not remote or far fetched, that she will be exposed and vulnerable to gender based harassment or violence in the context of employment. It also notes that her employment history in Australia has been in the [industry] and therefore she may be drawn to look for similar work upon return. Her vulnerable mental health may also exacerbate the impact of the harm of such conduct in her particular circumstances. The independent information cited above indicates that almost 1 in 3 women have suffered gender based violence in the workforce or the context of employment more generally, including travelling to and from work. It accepts that the country information also indicates that sexual harassment is prohibited under federal law in Mexico and there are fines, but the law is not effectively enforced. While recognising there is a range of conduct that can constitute sexual harassment from verbal abuse and denigrating innuendo to denial of opportunity or promotion to sexual assault and rape, the Tribunal is unwilling to conclude that any sexual harassment would not constitute serious harm within the meaning of that term in s5J(5). In this regard it takes into consideration her past experiences of sexual harassment and feeling unsafe when she worked in the airline industry there and her decision to leave this industry because of this. It accepts such harassment could involve harm in the form of threats to her life and liberty, significant physical harassment or ill treatment or conduct which has the effect of impacting her capacity to subsist and as such constitutes serious harm as required by s5J(5).
The Tribunal has considered whether the applicant has effective protection against the feared persecution, within the meaning of that term set out in s5LA and finds that the independent information indicates that despite the prohibition of gender based killings, violence and sexual harassment, Mexican law does not protect women and girls against these crimes or offences. The information indicates a lack of state resources to adequately prosecute cases, a culture of impunity for gender motivated crimes and inadequate public policies to tackle the dangerous machismo that permeates every sphere of daily life for women and girls. The Tribunal is not satisfied there are effective protection measures against the persecution the applicant fears.
For the reasons given above, the Tribunal is satisfied that the applicant, given her particular circumstances of gender, age, prolonged absence from Mexico, vulnerable mental health and uncertain family support, faces a real chance of serious harm for reasons of her membership of a particular social group, being single women in Mexico. It accepts that this reason is the essential and significant reason for the persecution feared. It finds the persecution involves serious harm within the meaning of that term. To the extent that the harm feared by the applicant is sexual harassment and violence in the workplace, the Tribunal is satisfied that the nature of such harm can be characterised as systemic and discriminatory conduct. The Tribunal is satisfied that the gender based harm feared is prevalent throughout Mexico and therefore the persecution feared relates to all areas of the country.
Having regard to the above findings and the applicant’s claims considered individually and cumulatively, the Tribunal is satisfied that the applicant faces a real chance of serious harm for a specified reason set out in s5J(1)(a) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that that applicant satisfies s.36(2)(a) of the Migration Act.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

‘Violence against women is on the rise in Mexico. How do Mexicans perceive it?’, Global Voices, 30 July 2021, 20211026102807’ Murders of women surge amid widespread gang violence’, Reuters, 27 April 2020, 20211026103356; Country Reports on Human Rights Practices for 2020 - Mexico', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.25 & p.26, 20210916115535

[2022] AATA 556

28 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies