1835826 (Refugee)

[2019] AATA 354

1835826 (Refugee) [2019] AATA 354 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835826

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Dr Irene O'Connell

DATE:14 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa.

Statement made on 14 February 2019 at 3:07pm

CATCHWORDS

REFUGEE – protection visa – Cambodia – Membership of a particular social group – Persons with drug related profile due to conviction for drug offences – divorcee – stigma exists but not to a level amounting to serious harm – decision under review affirmed

LEGISLATION

Criminal Code Act 1995 (NSW), s 307.2(1)

Migration Act 1958(Cth), ss 5H(1)(a), 5H(1)(b), 5J(1), 5J(2), 5J(3), 5J(4), 5J(5), 5J(6), 5K, 5L, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 36(2B), 65, 431, 499, 510, 501CA(4)

Migration Regulations 1994 (Cth), Schedule 2

SECONDARY MATERIALS

Direction No.56 – Consideration of Protection Visa applications

Procedures Advice Manual – PAM3 - ‘Refugee and humanitarian - Complementary Protection Guidelines’

Procedures Advice Manual – PAM3 – ‘Refugee and humanitarian - Refugee Law Guidelines’

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 December 2018 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [age] year old divorced woman from Cambodia. She arrived in Australia [in] August 2009 on a Prospective marriage (Class TO) (Subclass 300) visa and was granted a Partner (Class BS) (Subclass 801) visa on 6 March 2012. Since then she returned to Cambodia on a yearly basis; each time for approximately one month.

3. In June 2016, she was convicted by [a court in Australia] of importing a marketable quantity of heroin[1] and sentenced to a period of [imprisonment] with a non-parole period of [duration]. As a consequence of the applicant’s conviction, her partner visa was cancelled on 16 June 2017 under s.510 of the Act.  A request for revocation of that decision under s.501CA(4) of the Act was refused. The applicant was released on parole [in] May 2018 and transferred to immigration detention.

   [1] Contrary to s.307.2(1) of the Criminal Code Act 1995 (NSW).

4. The applicant subsequently lodged an application for a Protection (Class XA) (Subclass 866) visa on the basis that she fears harm on return to Cambodia because she is a divorcee and has a drug conviction. She fears that she will be stigmatised, treated as an undesirable and may be subject to detention in Cambodia and if detained subject to mistreatment in detention.

5. For the reasons that follow, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations). An applicant for a protection 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.

7. Section 36(2)(a) of the Act 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.

8. 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) of the Act. 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) of the Act.

9. Under s.5J(1)(a) of the Act, 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. For a person’s fear of persecution to be ‘well-founded’ there must  be a real chance that if the person is returned to the receiving country, they would be persecuted for one or more of the reasons mentioned in subsection (a) 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.  Notably s.5J(4) qualifies the concept of persecution by requiring that:

   ·one or more of the reasons set out in s.5J(1)(a) are the essential and significant reason or reasons for the persecution;

   ·the persecution involves serious harm to the person; and

   ·the persecution involves systematic and discriminatory conduct.

10. Section 5J(5) sets out examples of what constitutes serious harm. These are non-exhaustive and include the following:

    (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; denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

11. 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.

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Procedures Advice Manual - PAM3 ‘Refugee and humanitarian - Complementary Protection’ Guidelines and PAM3 ‘Refugee and humanitarian - Refugee Law Guidelines.’

    CLAIMS AND EVIDENCE

    Applicant’s oral and written evidence

13. The Tribunal has before it Department [file], which included a copy of the applicant’s protection visa application and the delegate’s reasons for decision.

14. In her application for a protection visa, the applicant lists her nationality as Cambodian, her ethnicity as Cambodian and her religion as Buddhist. She does not nominate a profession but lists [number] years of education. She states that her father is deceased. Her mother, [and a number of siblings] reside in Cambodia and she has [number] sisters who reside in Australia and hold Australian citizenship. She states that she is divorced and was divorced in Australia but does not give a date for the divorce. She has no children by that marriage.

15. The applicant states that if she returns to Cambodia she will be treated as ‘an undesirable’ as she is a divorced woman and has a conviction for drug offences. She says that the authorities will detain her in a ‘rehabilitation camp’ because she is ‘considered to be an undesirable person’. She says that such centres are ‘infamous for torture, forced labour, poor conditions and lengthy detention on weak or non-existent grounds.

16. The applicant claims that she will not be protected in Cambodia and that the risk of harm she fears will be present throughout the country.

17. The applicant was interviewed by a delegate of the Department of Home Affairs (the Department) and the Tribunal has listened to a recording of this interview. During the interview the applicant provided further information about her claims for protection.

18. Certain documents referred to in the delegate’s decision weren’t included in the Department file and were the subject of a request to the Department by the Tribunal. These documents included:

    ·     A copy of the identity documents and a passport referred to at page 3 of the delegate’s [decision]; and

    ·     A copy of the documents confirming the applicant’s conviction referred to at page 5 of the delegate’s [decision];

19. The applicant gave oral evidence to the Tribunal at a hearing held on the 16 January 2019 and a resumed hearing held on 21 January 2019. Both hearings were conducted in the English language at the request of the applicant. The applicant was represented at the hearings by her migration [agent].

20. In her oral evidence to the Tribunal, the applicant stated that she is scared to return to Cambodia. The applicant stated that she feared she would be placed in detention in Cambodia because of her drug conviction in Australia. She believed that if she was detained she would be treated like an animal and possibly killed or raped.

21. In response to a question about whether she had any encounters with the authorities in Cambodia when she lived there the applicant stated that she had never had any encounters with the police in Cambodia and that she was never arrested nor had a criminal history. In respect to the person who had provided her with the drugs, the applicant stated that she had had no further contact and did not know of his whereabouts.

22. In terms of her personal circumstances, the applicant stated that she could not recall the date of her marriage but thought it was in 2008 or early 2009. She stated that she has [sisters] in Australia and one of her sisters had introduced a man to her mother and that he then visited Cambodia and they agreed to marry. She had a marriage ceremony in Australia and in Cambodia. The applicant stated that they divorced in 2012 as they were arguing a lot and he was a gambler. She told the Tribunal that her former husband has subsequently remarried.

23. When asked about her return trips to Cambodia, the applicant stated that she had returned on a yearly basis from 2012 until 2015 up until her arrest by the Australian authorities. She stated that she returned regularly to Cambodia to see her family, especially her father who was in poor health. She stated that she has [a number of siblings] in Cambodia and that one of her sisters had defrauded her parents of their property and that she needed to assist her parents.

24. The applicant stated that this sister is divorced. When asked more about the circumstances of her divorced sister the applicant stated that her sister is in a new relationship. When asked about how her sister fared as a divorced woman the applicant stated that she could only find menial work and divorced women are looked down upon. When asked about her own experiences as a divorced woman on her return trips to Cambodia the applicant’s answer was non-responsive to the question. She stated she was concerned about her parents and their poor health and financial circumstances.

25. In concluding remarks the representative stated that the applicant’s fear of harm on returning to Cambodia is a combination of her status as a divorced woman and as a Cambodian citizen with an overseas drug conviction. Combined these two characteristics gave rise to the applicant’s membership of a particular social group and she would be viewed as an undesirable. Persons deemed as undesirable face the prospect of detention in places that are akin to concentration camps. In addition, the representative submitted that the applicant faced the real risk of being subject to cruel and inhuman punishment, torture or forced labour should she be detained by Cambodian officials.

26. The representative also argued that even if the applicant is not subject to detention she will be subject to mistreatment by the wider Cambodian society because, if her drug conviction becomes known, her employment opportunities will be limited. In addition, the representative submitted that the applicant will be subject to discrimination and ostracism.

27. The applicant’s representative reiterated these points by way of written submission (dated 21 January 2019). The representative contends that the applicant is at ‘risk of harm in Cambodia in the form of relegation to one of the country’s detention centres’ and that relocation within the country would not provide safety from this, and that the Cambodian authorities would not protect her from such an issue.

28. The representative restated that the applicant ‘presents in Cambodia as an ‘undesirable’ person of the type routinely sent to such centres’ due to ‘her status as someone who had acted as a drug mule from Cambodia to Australia and [has] spent substantial prison time here because of that.’ 

29. The representative also submitted that the delegate’s focus on the applicant’s drug use as a basis for risk of harm ‘overlooked the wider issue of undesirable people’. The representative’s submissions included an extract from a report by Human Rights Watch titled ‘World Report 2017: Cambodia events of 2016’, about the detention of undesirables which is as follows:

    Despite promises by Hun Sen to reform or close the Prey Speu detention center for Phnom Penh’s “undesirable people,” it remained operational. Security forces arbitrarily arrested hundreds of alleged homeless people, people who use drugs, sex workers, street children, and persons assumed to have a mental disability, and sent them to Prey Speu or one of the seven other so called drug treatment centers around the country, where they are held for indefinite periods without a judicial process. At least two detainees died in Prey Speu under suspicious circumstances. The centers, many of them operated by security forces, often subject detainees to torture and other forms of ill-treatment. [Emphasis in original]

30. The Representative provided additional documents with the submission. These are as follows:

    (1)A report from Human Rights Watch titled ‘World Report 2017: Cambodia events of 2016’;

    (2)A psychological assessment report prepared by [a named person], dated [December] 2015. The report was prepared following the applicant’s guilty plea for use in sentencing proceedings;

    (3)A copy of a document titled ‘Law on Control Drugs’ which was adopted by the National Assembly in Cambodia on 9 December 1996 during its seventh session of the first legislature (which is now outdated);

    (4)A statement from the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) titled ‘LICADHO Calls for Immediate Closure of Prey Speu Center Following Two Deaths’ dated 3 November 2015;

    (5)An undated extract from the LICADHO website titled ‘Monitoring & Protection: Human Rights Monitoring Office’, which provides an overview of the organisation’s role and links to related material;

    (6)An article by Anette Marcher published in The Phnom Penh Post titled ‘Arranged marriage blamed for failing families’ dated 20 August 1999;

    (7)An article published in the Khmer Times titled ‘Rehab Not safe from Gangs, Drugs’ dated 26 May 2016;

    (8)An article published in The Cambodia Daily titled ‘Government to Continue Drug Crackdown With Nearly $1M Budget’ dated 14 July 2017 by Phan Soumy and Matt Surrusco;

    (9)A journal article published in the British Journal of Community Justice 2011, volume 8, number 3, titled ‘Inside the Cambodian Correctional System’ by C Keo, R Broadhurst and T Bouhours;

    (10)A journal article published in The Cambodian Law and Policy Journal titled ‘Legal and Gender Issues of Marriage and Divorce in Cambodia’ by Dorine Van Der Keur; and

    (11)A journal article published in the Journal of Interpersonal Violence titled ‘Cambodian Remarried Women Are at Risk for Domestic Violence’ by Sothy Eng, Whitney Szmodis and Kelly Grace.

31. In a post hearing submission (dated 1 February 2019) the applicant provided a copy of her [Marriage Certificate] indicating that she was married [in] October 2009. She also provided a copy of her Application for Divorce made to the Federal Magistrates Court of Australia which indicates that the applicant and her spouse separated [in] September 2012 and filed for divorce in February 2014.

    Country information

32. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes. There are no DFAT Reports for Cambodia but the Tribunal has had regard to the country information provided by the representative and listed above.

33. The Tribunal has also had regard to a more recent version of the document titled ‘Law on Control Drugs’, which was provided by the applicant and is listed above at paragraph 30 of these reasons. The more recent version of this document was passed on 25 November 2011 during the National Assembly’s seventh session of the fourth legislature and was approved in its entirety by the senate on 16 December 2011 during the tenth plenary session of the second legislature.

34. The Tribunal has also considered the following country information. In respect to the treatment of persons with drug convictions a report from the Human Rights Resource Centre, titled ‘Update on the Rule of Law for Human Rights in ASEAN: The Path to Integration’ (June 2016) p.27 states as follows:

    Freedom from Double Jeopardy

    The Criminal Procedure Code clearly forbids trying or punishing a person for an offence for which he or she has already been finally convicted or acquitted. An exception to double jeopardy is in the case of a Motion for Review…It should be noted that general amnesty or pardon is not an obstacle for trying a person for matters within the jurisdiction of the [Extraordinary Chambers in the Courts of Cambodia]. The law establishing the ECCC states that “The scope of any amnesty or pardon that may have been granted prior to the enactment of this Law is a matter to be decided by the Extraordinary Chambers.”[2] [Emphasis in original, citations admitted]

    [2] Human Rights Resource Centre, ‘Update on the Rule of Law for Human Rights in ASEAN: The Path to Integration’ (June 2016) p.27.

35. A report from the Cambodian Center for Human Rights titled ‘Fair Trial Rights in Cambodia Monitoring at the Court of Appeal’ (dated June 2014) states as follows:

    2.2.3 Prohibition against double jeopardy

    Double jeopardy – or the principle of res Judicial (literally translated as “already judged”) – refers to the right of a person to be protected from being tried for the same crime or action more than once. It provides that the final judgement of a court, be it acquittal or conviction of the accused, shall act as a bar to any further prosecution for the act. There are a number of benefits of having this finality, both to the individual accused and the society as a whole, including the prevention of wasting legal resources where decisions have been made.

    The prohibition against double jeopardy is enshrined in Article 14(7) of the [International Covenant on Civil and Political Rights], Article 23 of the [Cambodian] Penal Code and Article 12 of the [Code of Criminal Procedure of the Kingdom of Cambodia].  It is very positive to note that in none of the cases monitored was there anything suggesting that the defendant had been tried and sentenced for this offense previously.

1. In respect to divorce in Cambodia, in an article provided by the applicant titled ‘Legal and Gender Issues of Marriage and Divorce in Cambodia’ from the Cambodian Law and Policy Journal (2014), the following is set out:

   In Cambodia, marriage is a highly valued institution and the norm in society.

   …

   There are no reliable or up-to-date statistics in Cambodia on the rate of divorce.

   …[T]he low divorce rate measured in the 2008 census does not reflect reality, and it must be assumed that the separation and divorce rate is much higher [than the reported amounts].

   …Nevertheless, divorce rates will certainly remain much lower than in the West due to cultural stigma on women who are divorced and their economic dependence on men. As emphazed even by the Ministry of Women’s Affairs, divorce is only a last resort. [Citations omitted]

2. This is consistent with the following information contained in the journal article titled ‘Cambodian remarried women are at risk for domestic violence’ from the Journal of Interpersonal Violence (2017). The  article states that:

   Divorce rates continue to rise, especially in urban centers…
   …
   While the divorce rate in Cambodia remains relatively low when compared with…Western countries, increasing numbers of Cambodian women are affected by divorce. According to the Cambodian Inter-Censal Population Survey…, 7% of marriages end in divorce and divorce and remarriage are on the rise, particularly in urban areas. The arduous divorce process, which requires that couples appear in court 3 to 5 times over the course of several years to be granted a divorce, is often avoided, and couples part ways with-out obtaining a legal dissolution of the marriage. This may lead to the possibility that the dissolution of unions is much higher than the officially reported rate.
   …
   In addition to the legal and bureaucratic hurdles, the social, cultural and economic difficulties that effect divorced women could explain the low divorce rate. Divorce is highly stigmatized in Cambodian culture as the dissolution of marriage is often seen as a woman’s failure as a wife and mother. Unequal employment opportunities and participation in unpaid domestic work means that women in Cambodia are often financially dependent on their husbands.
   …
   The dependence could deter women from seeking divorce. Cultural factors such as the emphasis on harmony and reconciliation in many Cambodian marriages, could lead to an expectation to mediate and reconcile martial differences, even in situations of domestic abuse. [Citations omitted]

   FINDINGS AND REASONS

   Country of reference

3. On the basis of the applicant’s passport (a photocopy of which is located at Folio 37 of the Tribunal file) the Tribunal is satisfied that the applicant is a national of Cambodia. Accordingly, the Tribunal finds that Cambodia is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.

   Does the applicant have a well-founded fear of persecution should she return to Cambodia?

4. The applicant is not in the circumstance of having fled her country because of past harm. Indeed the applicant returned to Cambodia several times after her arrival in Australia in 2009. However she claims that she fears harm now if she returns to Cambodia because of her conviction in Australia of a serious drug offence and because she is a divorced woman having married and divorced in Australia. The applicant claims to fear harm on her return to Cambodia in terms of possible detention and mistreatment in detention. She also fears general ostracism and discrimination.

5. On the basis of the applicant’s evidence both oral and written, the Tribunal accepts that the applicant is a divorced woman and that the applicant has a drug conviction for which she has served prison time in Australia. The Tribunal notes that the applicant’s evidence at the hearing and to the delegate is that she has never been addicted to prohibited drugs and that she has not taken prohibited drugs since May 2015.

6. The Tribunal does not accept that the applicant would be detained by the Cambodian authorities on her return to Cambodia. The applicant claims that her profile as a divorced woman and holding a drug conviction would make her an undesirable and as such liable to arbitrary detention. The applicant provided country information (set out above at paragraph 29) about the arbitrary detention of persons deemed undesirable.

7. The Tribunal, however, does not accept that the applicant would be deemed as an undesirable by reason of her divorce and drug conviction.  The term undesirable, as referred to in the article relied upon by the applicant, is applied to homeless people, drug users, sex workers and street children who are subject to street round ups and then detention. The applicant has not suggested that she is any of these; she has family in Phnom Penh, she is educated and says that she is a reformed person following her time in prison in Australia where she has obtained a trade.  The applicant has not suggested that she would be returning to Cambodia and living in the streets. As the Tribunal does not accept that the applicant would be profiled as an undesirable or would be homeless the Tribunal does not accept that she would be subject to arbitrary detention.

8. Further the Tribunal notes that in her oral evidence the applicant stated she had not encountered any difficulties with the Cambodian authorities either on her return visits there or during the years she lived in Cambodia. As such the Tribunal is satisfied that the applicant does not have a pre-existing adverse profile that may lead to her being considered undesirable.

9. Nor does the Tribunal accept that the applicant’s drug conviction here in Australia would result in detention on her return to Cambodia. The Tribunal makes this finding on the basis of the country information set out above and in particular at paragraphs 34 and 35 above.  This country information indicates that double jeopardy is prohibited. As the applicant has already served time for her drug offence in Australia the Tribunal is satisfied on the basis of this country information that the applicant would not be detained by reason of her drug offence in Australia.

10. Nor does the Tribunal accept that the applicant would be forced into drug rehabilitation, which she provided country information about. The applicant’s evidence is that she is not a drug user and not an addict.

11. As the Tribunal does not accept that the applicant will be detained on her return to Cambodia the Tribunal does not accept that there is a real chance or real risk that she would be subject to mistreatment as sometimes occurs for persons in detention.

12. In terms of her claim to fear harm by reason of her status as a divorced woman the applicant did not provide any evidence of harm she faced on her return visits to Cambodia as a divorced woman nor did she provide evidence  of mistreatment of her (divorced) sister in Cambodia. Only when directly questioned on the topic did the applicant state that her sister had difficulty obtaining employment. It was unclear whether this difficulty was directly the result of her divorce status or simply a result of the general economic climate in Cambodia.

13. The Tribunal notes the country information in respect to the attitudes to divorced women and that divorce rates are low. The Tribunal notes the country information indicates that woman in Cambodia rely heavily on their married partner for their economic survival and thus women are unlikely to seek divorce. The Tribunal accepts divorce is frowned upon in Cambodia and divorced women may experience a degree of ostracism and hardship to survive economically on their own. However the Tribunal does not accept that the applicant would be subject to hardship or ostracism of a degree or kind that would give rise to a well-founded fear of persecution as required by s.5(J) of the Act.

14. However as set out above the applicant has some education and has acquired skills in her time in Australia. The applicant has not provided any incidents in respect to herself or her divorced sister that would suggest that her status as a divorced woman gives rise to a well-founded fear of persecution on her return to Cambodia.

15. The Tribunal also accepts that a person with a drug conviction may, as the applicant’s representative suggests, experience some hardships such as finding employment should their conviction become known to others. However the Tribunal does not accept that such difficulties of themselves amount to serious harm or give rise to a well-founded fear of persecution as required by s.5(J) of the Act.

16. Nor does the Tribunal accept that the applicant’s drug conviction and divorce status combined give rise to a well-founded fear of persecution. The combination of these two factors does not give rise to any additional considerations.

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Is there a real risk that the applicant will suffer significant harm on her return to Cambodia?

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that being whether on the evidence there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Cambodia.

19. For the reasons that are set out above the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Cambodia.

20. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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 criteria in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Irene O'Connell
    Deputy Division Head