1904148 (Refugee) - [2024] AATA 4348

1904148 (Refugee) [2024] AATA 4348 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904148
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sophie Manera
DATE:5 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 August 2024 at 12:35pm

CATCHWORDS
REFUGEE – protection visa – Ghana – applicant’s identity – sexual orientation – lesbian – incidents of past harm – past relationships – activity in Australia – credibility concerns – nature and number of inconsistencies – single mother – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91WA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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

The applicant is a [age]-year-old woman and a Ghanaian national.
[In] October 2016 the applicant last arrived in Australia on a visitor visa. The applicant entered Australia under a passport belonging to [Alias 1] (DOB [Date 1]).
On 28 October 2016 the applicant applied for a protection visa under the name [Alias 1]. In her protection visa application form, the applicant claimed that she left Ghana because she is a lesbian. She claimed that she has been arrested by the police because of her sexual orientation. She has been detained by the police numerous times. She has been detained for up to 6 hours and had to bribe the police to be released. She has suffered unimaginable harassment and abuse. She has been detained, tortured and harassed by the police. She has been shunned by her friends and family members. She cannot count the number of times she has been arrested and detained for no apparent reason. Her father nearly cut off her ear because he found out that she is a lesbian. The law criminalises homosexuals in Ghana.
The applicant provided the Department of Home Affairs (Department) with a statutory declaration deposed to on 15 August 2018. A summary of the pertinent points in her statutory declaration is as follows:
·She realised she was attracted to girls while at high school, at the age of approximately 17. She had a girlfriend at high school, a classmate named [Ms A]. One night, they slept in the same bed and had sex. The applicant believed that other girls had seen them and rumours started at school about her being a lesbian. They dated for about a year. They stopped dating when the applicant found out [Ms A] had cheated on her;
·The applicant’s father was a village chief. She stated that people in the community would talk about her being a lesbian. A friend of her father’s told him that she is a lesbian. In 2016, her father threw something like a knife at her which cut her head right by her ear. The applicant stated that her mother called the police and a policeman drove her to a nearby hospital;
·In Ghana she had been in a long-term relationship with a woman named [Ms B];
·She was arrested by the police in Ghana on 3 occasions. The first occasion took place in early 2014 outside a bar named [Pub 1] in Kumasi. The police came and everyone scattered as people were often arrested at this location. The applicant was arrested and taken to a police station. The applicant was held for about 2 to 3 hours until released. The second occasion occurred in about December 2014. The applicant was again taken to a police station and held for a few hours. She did not have enough money to pay the bribe so had to call a friend to come and bring her money. The third occasion took place in early 2016. The applicant was again arrested at [Pub 1]. She had enough money to pay the bribe at the police station;
·She arranged to leave Ghana through a ‘connection man’, who arranged her Australian visitor visa.
The applicant attended an interview with an officer of the Department on 17 August 2018. During the interview the officer questioned (amongst other things) the applicant’s identity.
On 31 August 2018 the applicant’s new representative provided a post-interview submission and documents to the Department. The submission stated that the applicant’s real name is [the applicant] and her real date of birth is [Date 2]. The submission stated that the applicant was recommended by the ‘connection man’ to use a different name to enter Australia as she had previously been refused a visa to the United States of America. The submission reiterated the applicant’s claim that her life is at risk in Ghana due to her sexuality. It said she had suffered maltreatment and humiliation not only from society but from her own family members. The applicant provided the Department with photos of the wound to her ear, a photo of the applicant with her first girlfriend [Ms A], a photo of the applicant with her second girlfriend [Ms B], a photo of the applicant at a Mardi Gras parade in Sydney, and a copy of the applicant’s passport issued by the Issuing Authority in Accra, Ghana.
On 14 February 2019 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate had significant credibility concerns regarding the applicant’s evidence and refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant made an application for review on 22 February 2019. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 4 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan and English languages.
During the hearing, the applicant provided the Tribunal with a bundle of documents including:
·a copy of her passport biodata page;
·a copy of her son’s birth certificate;
·a letter of recommendation from her church;
·a letter of support from her friend [Mr C];
·an employment reference letter;
·a copy of her father’s funeral notice and photo from her father’s funeral;
·a bundle of photos of the applicant, including photos of her with a shaved head, wearing sports clothes, and wearing shorts and shirts; and
·photos of the applicant with her arm around [Ms A].
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In her application for a protection visa, the applicant claims to be a citizen of Ghana, born in Kumasi, Ashanti region.
The applicant provided a copy of her passport biodata page in the name of [the applicant] in support of her protection visa application. This document states it was issued in Accra.
The delegate of the Minister for Home Affairs accepted that the applicant’s name is [the applicant] and her date of birth is [Date 2]. The delegate was satisfied as to the applicant’s identity and that s 91WA(1) does not apply to the applicant. The Tribunal also accepts the applicant’s explanation as to how and why she came to Australia under the identity of [Alias 1]. The Tribunal is satisfied that s 91WA(1) does not apply to the applicant.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Ghana, and as such her protection claims will be assessed against Ghana as the country of reference and ‘receiving country’ respectively.
Analysis, findings and reasons
Credibility
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an 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.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
The Tribunal is also mindful that an applicant may find it particularly difficult or embarrassing to discuss claims in relation to his or her sexual orientation.[3]
[3] WAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 40 per Raphael FM at [23].
The Tribunal did not find the applicant’s evidence to be credible. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in her evidence, the vague nature of some key aspects of her claims and other reasons detailed below.
Incidents of past harm
The Tribunal discussed the delegate’s decision record with the applicant and informed the applicant that, like the delegate, the Tribunal had concerns regarding the credibility of the applicant’s evidence. The Tribunal informed the applicant that the delegate was not satisfied that the applicant is a lesbian, and the Tribunal also had concerns whether the applicant is, in fact, a lesbian as claimed.
The Tribunal put to the applicant that one of the reasons for its concerns was the nature and number of inconsistencies between the applicant’s written claims and the oral evidence given during the hearing relating to claimed incidents of past harm.
During the hearing, the Tribunal asked the applicant to provide specific details of any instances of harm or harassment suffered in Ghana. The applicant stated that on 3 occasions she was caught by the police in front of a pub called [Pub 1]. She said that on each occasion, police approached groups of people at the pub. Someone would call out ‘scatter’, and people would run away. The applicant said that on each occasion when she was stopped by the police, she was detained on the street in front of the pub until she was able to pay a bribe to the police officers. When pressed on the location of these 3 incidents, the applicant said they took place on the street in front of the pub. She did not state that she was taken to a police station, nor did she state that she was physically harmed by the police officers.
The Tribunal noted multiple internal inconsistencies in the applicant’s evidence relating to the 3 alleged arrests. The Tribunal notes the applicant’s protection visa application form states that she ‘cannot count how many times [she has] been arrested detained [sic] with no apparent reason’. However, in the applicant’s statutory declaration dated 15 August 2018, in the post-Departmental-interview submission dated 27 August 2018, and at the hearing, the applicant specifically claimed that she had been arrested and detained on 3 occasions. The Tribunal notes that the details of the 3 occasions vary between the accounts.
Firstly, the Tribunal put to the applicant that the post-interview submission dated 27 August 2018 states that she was tortured by the police, however during the hearing she did not mention that she had been tortured by the police.
Secondly, the Tribunal specifically asked the applicant during the hearing about where she was detained whilst arranging payment of the bribes to the police. The applicant stated that she was detained on the street. The Tribunal notes her statutory declaration dated 15 August 2018 states that she was taken to a police station.
Thirdly, the Tribunal notes the written protection visa application form states she was detained for up to 6 hours, however at hearing, when asked to provide detail of the arrests, she did not say that she was detained for up to 6 hours.
The Tribunal put the inconsistencies to the applicant. The applicant said that the police had stopped her 3 times. She did not say whether she had been tortured, nor did she explain the reason for the inconsistency in relation to her allegation of torture. She said that in relation to her allegations of being detained, she was stopped on the street by the police and taken to a small area until the bribe was paid. She did not explain the reason for the inconsistencies in her accounts.
During the hearing, the Tribunal asked the applicant to discuss other instances of harm, apart from the 3 arrests. The applicant said that one incident took place on Easter Monday in 2016, where her dad picked up a knife and cut her ear as he believed she was a lesbian. The Tribunal put to the applicant that she had provided differing accounts as to how she suffered the wound to her ear. The Tribunal said that her written accounts refer to her father throwing a knife at her. However, during the hearing, she did not say that a knife had been thrown. The applicant said that he did not really throw the knife, rather the knife was in his hand, which he stretched out to injure her. She did not explain why inconsistent accounts of this incident had been provided.
When discussing other instances of harm, the applicant said that one incident took place in high school, when she was discovered in bed with [Ms A]. She said people talked about her after that, so she decided to go to a different school. She said her relationship with [Ms A] ended because she left the school. The Tribunal put to the applicant that her statutory declaration dated 15 August 2018 stated that her relationship with [Ms A] ended after she discovered [Ms A] was cheating on her. The applicant said that she saw [Ms A] cheating and she left the school. She did not explain why she failed to mention [Ms A]’s cheating earlier in the hearing. The Tribunal finds the inconsistent evidence regarding the end of her relationship with [Ms A] casts doubts on the existence of the relationship at all.
When asked to discuss any other occasions of harm or harassment suffered, she said that she would hear verbal insults when playing football. She said that she had not suffered any physical harm in Ghana besides the cut on her ear. She did not raise any other instances of harm or harassment suffered in Ghana.
The applicant said that now that her father has passed away, she fears harm from her father’s relatives. She said that she had not received threats from the wider community; the problem was now her father’s family.
The Tribunal put to the applicant that her post-interview submission stated that she had suffered maltreatment and humiliation from family members. However, she had not provided examples of this, apart from the time when her father cut her ear. The applicant said that people would run away from her. However, the Tribunal does not accept this, as she did not provide any specific details as to what happened on these occasions when people ran from her, nor how she suffered maltreatment or humiliation as a result.
Past relationship with [Ms B]
The Tribunal asked the applicant about her relationship with [Ms B]. The applicant said that her relationship with [Ms B] was nice. They were together for about 4 years. She said she left her to come to Australia. When pressed to provide further details about the relationship, the applicant again stated that their relationship was nice and lovely. When asked about how they kept their long-term relationship hidden, the applicant said that [Ms B] usually came to her house. She said that when they went out they would find places to sit. The applicant’s account of her relationship with [Ms B] lacked detail. The Tribunal would have expected the applicant to provide further information about how their relationship progressed over time, how they dispelled rumours about their same-sex relationship, and how they managed to successfully hide the relationship for 4 years. When asked why she did not mention [Ms B] on her protection visa application form, the applicant said she may have forgotten, or she had no one to help her explain. The Tribunal finds these answers about her relationship vague and lacking in detail. When asked, the applicant could not tell the Tribunal about any positive experiences as a lesbian in Ghana, despite claiming to be in a 4-year relationship with [Ms B] which she described as nice and lovely. For these reasons, the Tribunal finds the applicant’s evidence in relation to her claimed relationship with [Ms B] to be unpersuasive.
Activity in Australia

The Tribunal is also concerned by the applicant’s failure to express her sexuality in Australia, considering her claimed life as a lesbian in Ghana. The applicant said she had never tried to meet any same‑sex partners in Australia. She has not disclosed her sexuality to anyone in Australia. She has not taken the initiative to contact anyone in Australia who might understand her, nor has she disclosed her sexuality online or in private. The applicant said that she once used a Christian dating app. This was not a dating app for homosexuals. She said that she had a brief sexual relationship with a man in Australia, who fathered her child. She is in occasional contact with him.
The Tribunal put its concern to the applicant that she had not taken any steps to engage with the lesbian community in Australia. The applicant said that she attended a Mardi Gras festival on one occasion. She then said that she has started going to church. She does not talk about her sexuality. She is not in a relationship with any man or woman. She does not know what she wants. The Tribunal understands that the applicant has grown up in Ghana, which is a deeply Christian country, and where homophobic beliefs are common. The Tribunal accepts that there are many reasons why some people do not openly disclose their sexuality. However, the Tribunal has considered the way the applicant claims to have lived her life as a lesbian in Ghana, namely pursuing a same-sex relationship in high school, pursuing a 4-year relationship with [Ms B], and frequenting [Pub 1], which she claimed in her statutory declaration dated 15 August 2018 was frequented by lesbians. The applicant did not claim nor appear to be shy in pursuing relationships in Ghana. The applicant told the Tribunal that being a lesbian is easy in Australia because it is allowed. She also told the Tribunal that she would like to find a partner. However, she has never pursued a relationship with a woman in Australia. She has had a sexual relationship in Australia with a man. The Tribunal has noted the applicant’s claimed expression of sexuality in Ghana. It considers it is reasonable for the applicant to have expressed her sexuality in Australia at at least the same level as she had done in Ghana. This did not happen. When asked why she had not expressed her sexuality in Australia, despite acknowledging the freedoms here, the applicant said that it was hard to talk about and she did not know what she wanted. The Tribunal finds the applicant’s answer inconsistent with her previous evidence that being a lesbian is easy in Australia, and inconsistent with her claimed life in Ghana as a lesbian.
Documents provided
The Tribunal has considered the support letters the applicant provided during the hearing, namely from her church pastor, her friend [Mr C], and her employer. These documents do not make any reference to the applicant’s claimed sexuality and, as such, the Tribunal finds they do not assist in proving the applicant’s claimed sexuality.
The Tribunal has also reviewed the photos of the wound to the applicant’s ear. While these photos prove the applicant has suffered a wound to her ear, they do not demonstrate how the applicant suffered the wound or from whom. The Tribunal accepts the applicant has suffered an injury to her ear, however in view of the inconsistent evidence as to how her father injured her, and the Tribunal’s other credibility concerns, it does not accept that the injury was committed by her father because he believed she is a lesbian.
The Tribunal has considered the photos of the applicant with a shaved head and wearing clothing more typically associated with men, such as shorts. The Tribunal put to the applicant that these photos may demonstrate that she presents as a boyish female, but they may not necessarily prove her sexuality. The applicant repeated that she was scared to return to Ghana.
The Tribunal has considered the photos of the applicant with [Ms A] and [Ms B] but finds they do not demonstrate that she was in a same-sex relationship with either woman. The Tribunal finds the photos do not indicate anything other than women standing next to each other. The Tribunal finds they do not indicate a romantic relationship.
Summary of claims
When considering the totality of the applicant’s evidence, the Tribunal finds her claims do not add up. She claims to have been in homosexual relationships in Ghana but has not been able to provide consistent and substantial details of the relationships. She has provided inconsistent information regarding the harm and arrests she claims to have faced in Ghana, and could not explain why this occurred. She could not satisfactorily explain why she had failed to express her sexuality in Australia, despite her awareness of the freedoms Australia provided and her wish to find a partner.
The Tribunal finds these inconsistencies are significant. Considering the significant internal inconsistencies within the applicant’s evidence and the vagueness and lack of detail in the oral evidence given by the applicant, the Tribunal does not find the applicant’s evidence credible.
On the basis of these findings, the Tribunal finds the applicant is not a lesbian nor has she ever been perceived to be a lesbian. She has never been in a same-sex relationship or been intimate with women in Ghana or Australia. The Tribunal does not accept that she was discovered having sex at school with her classmate [Ms A], nor does the Tribunal accept that rumours of her homosexuality circulated at school. The Tribunal does not accept that the applicant hid her sexuality in Ghana. It does not accept that the applicant was perceived to be or rumoured to be a lesbian by her family or people in the community. It does not accept that she was ever arrested. It does not accept that she suffered bullying, ostracism, harm or harassment from her family or members of the community because they believed she was a lesbian.
The Tribunal accepts that on occasions the applicant had her head shaved and dressed in sports clothes, or shorts and shirts. However, based on the photos provided by the applicant, she did not exclusively dress in boyish clothes and maintain a shaved head. In one of the more recent photos of the applicant, in which the wound to her ear is shown, the applicant has braided hair. In another photo provided, dated 5 January 2015, the applicant is wearing a long dress. As such, the Tribunal does not accept that the applicant always dressed in a boyish fashion in Ghana, nor does the Tribunal accept that the applicant would always dress in a boyish fashion upon return to Ghana. In any case, considering the Tribunal does not accept that the applicant has previously been harmed due to her boyish dress, the Tribunal finds the applicant would not face a real chance of serious harm in Ghana from dressing in boyish clothes.
The Tribunal accepts the applicant’s oral evidence that she attended a Mardi Gras celebration in Sydney on one occasion. The applicant has not claimed that anyone in Ghana found out about her attendance, and the Tribunal does not accept that anyone in Ghana is aware that she attended a Mardi Gras celebration on one occasion. Considering the Tribunal is not satisfied the applicant is a lesbian, it does not find she would attend events for the queer community in Ghana. The Tribunal finds the applicant would not face a real chance of serious harm in Ghana for attending a Mardi Gras festival on one occasion in Australia.
The Tribunal does not accept the applicant faces a real chance of serious harm from her father’s family, the authorities, or the wider Ghana community, as a result of her sexuality. The applicant did not claim harm for any other reason in Ghana.
Single mother
During the hearing, the Tribunal confirmed with the applicant that her only claim for protection is based on her sexuality. When asked whether there were any other reasons why she feared returning to Ghana, the applicant repeated her sexuality claim.
While the applicant did not specifically raise any fears of harm in Ghana due to her status as a single mother, the Tribunal notes the applicant said at the end of the hearing that she hopes to remain in Australia and look after her son as a single parent.
The Tribunal has considered whether the applicant faces a real chance of serious harm arising from her status as a single mother. The Tribunal notes country information indicates that single mothers are overrepresented among economically poor women,[4] and many single mothers face economic hardship.[5] However, the Tribunal also notes that, on the applicant’s evidence, she is in contact with her mother nearly every day. The Tribunal finds the applicant has family support in Ghana. Considering the applicant did not raise any specific fears of harm based on her status as a single parent, and considering the applicant would have support from her mother in Ghana, the Tribunal does not accept the applicant would face a real chance of serious harm in Ghana as a single mother now or in the reasonably foreseeable future.
[4] Ayebeng, C., Dickson, K.S., Seidu, AA. et al. Single motherhood in Ghana: analysis of trends and predictors using demographic and health survey data. Humanit Soc Sci Commun 9, 345 (2022).
[5] GhanaWeb Special: Single mothers struggling to fend for their children share their stories, Ghana Web, 4 January 2023
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for reasons of her sexuality or single mother status. The Tribunal finds there are no more residual claims to be considered.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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