2001478 (Refugee)

2001478 (Refugee) [2023] AATA 3318 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:Unrepresented
CASE NUMBER: 2001478

COUNTRY OF REFERENCE: United States of America
MEMBER:Kate Chapple
DATE:7 July 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2023 at 11:30am
CATCHWORDS
REFUGEE – protection visa – United States of America – particular social group – mental health issues – sexual assault victim – family violence – identity theft – criminal activity set ups – fear of killing – medical mistreatment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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.
EVIDENCE BEFORE THE TRIBUNAL
Timeline

Departmental and Tribunal records disclose these key dates:
1.1.Applicant’s first arrival in Australia: [January] 2017.
1.2.Applicant’s first application for protection visa: 20 January 2017.
1.3.First delegate’s decision to refuse to grant protection visa: 18 July 2017.
1.4.Applicant’s departure from Australia: [August] 2017.
1.5.Applicant’s second arrival in Australia: [July] 2019.
1.6.Applicant’s second application for protection visa: 3 September 2019.
1.7.Second delegate’s decision to refuse to grant protection visa: 17 January 2020.
1.8.Application for review of second delegate’s refusal decision: 28 January 2020.
Protection visa application
The applicant’s written protection claims are summarised in the delegate’s decision record as follows:
2.1.She fears for her life as people have told her she will be killed
2.2.She was continuously persecuted since her last return to the USA – her jobs involved difficult challenges, she was harassed, placed in dangerous situations and there were attempts to set her up for criminal activity including a doctor setting her up for opioid use or claims of being mentally ill, she refused opioids several times
2.3.Her life is at risk because of her vote for Donald Trump, a CIA agent pretending to be [Mr A] has stalked her online for years, she met the real [Mr A] who was trying to help her
2.4.She has repeatedly written to the FBI regarding [Mr B], [Mr A], and [Mr C], the FBI have not contacted her but spoke to her family
2.5.She moved to California from North Carolina. Upon arriving in Sacramento, she met [Mr B] through a dating company and [Mr B] tried to help her by referring people to her for [service 1], but they were not good people. [Mr B] called her for phone sex and threatened her not to be a whack job. She gave her customers [services 1].
2.6.One of her customers, [Mr C], told her that [Mr B] threw her under the bus and lied to the FBI. [Mr C] also stalked her, and she reported him many times in North Carolina for his abuses. His friends also stalked her.
2.7.She got sick and had her first surgery for [a condition]. [Relative A] stayed at her home and accepted a package while she was in the hospital. She thinks [Relative A] killed her mother.
2.8.She was assaulted twice last summer in Los Angeles. During this time, a video came out about a woman and her child which made her life in danger even more. She wrote to the FBI whose response was to send undercover agents who attempted to take her away to a mental health facility.
2.9.She needs a new identity to be in the Federal Witness Protection Program. If refused, she could be killed as she is an illegal organ harvest victim.
2.10.She approached a doctor who did her operation where an egg was removed without her consent, in addition to a tumour which signed off for research in favour of [a named] medical Centre in Sacramento California. On her admission to hospital, the word ‘homeless’ was underscored, and she felt targeted by the hospital.
2.11.She was interested in finding out what happened and searched for [Doctor A’s] contact details. She confronted him and [Doctor A] told her that ‘another patient delivered a 9-month-old fibroid’. He stole from her something she believes was first copied and then made into a real child who was handicapped, and that child is dead. People have told her that [Hospital 1] received her egg. This is a political situation, and they are affiliated with [two named countries] and the US military involvement there.
2.12.She cannot prove that she signed off her tumour for research. She was told that money is being signed off in an untraceable trust fund of [Mr A] and he was trying to help her knowing it was stolen from her. Her real evidence is that the man she dated, [Mr C], was outside the hospital when she was discharged. She was given a polaroid photo of an organ by [Doctor A] outside the hospital on her discharge date while [Mr C] was looking and was told it was a pig’s bladder.
2.13.A DV shelter in North Carolina told her to go to South Carolina to get a new driver’s licence and then go to California. She did so and when she returned to North Carolina she had a message to call a South Carolina police officer. When she did that, she was asked to return to South Carolina because it’s illegal to have more than one licence. The officer put her on hold and then [Mr C] came on the line, screaming and telling her it was a felony. She ignored the call and went to California. [Mr C] told his friends and other hardened criminals that she is crazy.
2.14.She also believes someone called [Mr A] is following her. He sat next to her in [Town 1] California. There are many facets to her story, she keeps getting torn down and people who used her identity do not want her around. She is fortunate to be alive.
2.15.She seemed to be getting jobs that were meth fronts. She was hired to assist on weddings at a resort in [Town 2], California. She strained a back muscle and went to a doctor who is a psychiatrist and GP. She refused OxyContin, Tylenol, and Codeine.
2.16.A cop was chasing her, but she was unsure whether that was the real [Mr A] or the fake one who works for the CIA. There were many circumstances this cop tried to get her out of [Town 3]. She was told [Mr A] pretends to be [Mr A name variant]. She wrote to [Hospital 1] to stop using her organ an egg, and after that, she met [Mr D].
2.17.[Mr A] was admitted in the mental ward of [Hospital 2]. She used to work in the pharmacy there. Her own family attempted to admit her there against her will. Her sister hit her, but the security guards allowed her to go. While a patient at [Hospital 3], they forced opiates on her. People have told her she is crazy, but she is not mentally ill.
2.18.The lead character of [Movie 1] was asleep on the sidewalk near her once at a bus stop in [Town 4]. He stood up when the bus came and looked at her and said, ‘who does not smoke pot’? He then boarded the bus. Thinking back, she felt he targeted her. He is friends with [Character 1]. The man named [Mr E] from [Country 1] told her that [Character 1] was involved in him watching her. She is seeking protection from people like him who desire to use her to cover his crimes.
2.19.[Character 1] approached her 4 times. His photographer, [named], spied on her and took pictures. She wants to work in Australia but is concerned that [Character 1] has hired someone to keep track of her. She was told by a woman [named], a retired Australian [officer], that [Character 1] was keeping an eye on her.
2.20.Two federal officers have told her to go to a mental hospital and she refused their offer. She hopes to find a job and will endeavour to get a card for tradie work.
Other departmental records:
Decision record relating to the second delegate’s refusal decision.
Case file.
Internal records relating to the applicants.
Application for review
The Tribunal wrote to the applicant inviting her to attend an in-person hearing on 5 July 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that she intended to participate in the hearing without the assistance of representative, a request that the Tribunal take evidence from a number of named witnesses, and the following material:
5.1.Certificate of completion – [Health Service 1] in relation to the applicant dated August 2001.
5.2.[Health Service 2] report dated 31 July 2017 certifying that the applicant is fit to fly.
5.3.[Hospital 3] Mental Health Services Transfer of Care report in relation to the applicant dated 2 August 2017.
5.4.[State 1] amended certificate of live birth relating to the applicant dated [date].
5.5.Medical Examiner’s Certificate (for Commercial Driver Medical Certification) issued by US Department of Transportation in relation to the applicant dated [in] 2019.
5.6.Certified copies of the applicant’s passports and drivers licence.
5.7.Applicant’s statement emailed to the Department on 27 September 2019.
5.8.Email from the applicant to the Tribunal dated 2 June 2020.
5.9.Letter to the applicant from a decision maker in the [Hospital 3’s] [Unit 1] dated 7 August 2020 in response to the applicant’s request for access to information.
5.10.Email from the applicant to the Tribunal dated 19 August 2020.
5.11.Email from the applicant to the Tribunal dated 20 August 2020.
5.12.Email from the applicant to the Tribunal dated 21 August 2020 enclosing letters to the applicant from [Bank 1] dated 29 July 2019 and August 2019.
5.13.Seven additional emails from the applicant to the Tribunal dated 21 August 2020.
5.14.Emails from the applicant to the Tribunal dated 26 August 2020 and dated 28 October 2020 enclosing a character reference from [Witness A] dated 26 August 2020.
5.15.Email from the applicant to the Tribunal dated 9 September 2020.
5.16.Email from the applicant to the Tribunal dated 6 October 2020.
5.17.Australian Criminal Intelligence Commission Criminal History Check Certificate in relation to the applicant dated [in] February 2021.
5.18.Two emails from the applicant to the Tribunal dated 9 February 2021.
5.19.Letter to the applicant from [Agency 1] dated [in] 2022 notifying approval of the applicant’s working with children check application.
5.20.Medicare immunisation history statement in relation to the applicant dated [in] September 2021.
5.21.Letter from [Employer 1] dated 19 September 2021 in relation to the applicant’s [Employer 1 work].
5.22.[Business 1] certificate in [subject] issued to the applicant and dated [in] June 2022.
5.23.[Agency 2] Statement of Attainment issued to the applicant and dated 21 June 2022.
5.24.Email from the applicant to the Tribunal dated 17 September 2022.
5.25.Applicant’s application for access to health records dated 11 November 2022.
5.26.Handwritten notes (20 pages) by the applicant to the Tribunal dated 15 November 2022.
5.27.Handwritten notes (6 pages) by the applicant to the Tribunal dated 18 November 2022 on the face of and attached to a letter from [Bank 1] to the applicant dated 29 July 2022.
5.28.Letter from consulting psychiatrist, [Psychiatrist A], to GP, [Doctor B], in relation to the applicant dated 11 October 2022.
5.29.Letter to the applicant from [an airline] dated 20 November 2022 confirming the applicant’s air travel [in] August 2017 from Brisbane to Los Angeles.
5.30.Email from the applicant to the Tribunal dated 26 November 2022.
5.31.[College 1] student timetable for semester 1 2023 relating to the applicant’s enrolment in [Course 1].
5.32.Letter from [a named] Community Service in relation to applicant’s [Employer 1 work] dated 12 January 2023.
5.33.[College 1] anonymous feedback in relation to the applicant dated March and May 2023.
5.34.Letter to the applicant from the Queensland Police Service dated [in] April 2023 in relation to the applicant’s request for access to information.
5.35.Email from the applicant to the Tribunal dated 28 June 2023 enclosing letter to the applicant from a decision maker in the [Hospital 3’s] [Unit 1] dated 19 October 2021 and [Hospital 3] medical records provided to the applicant in response to her request for access to information.
5.36.Email from the applicant to the Tribunal dated 28 June 2023 enclosing letter to the applicant from a decision maker in the [Hospital 3’s] [Unit 1] dated 19 December 2022 and [Hospital 3] medical records provided to the applicant in response to the applicant’s request for access to information.
5.37.Two additional emails from the applicant to the Tribunal dated 28 June 2023.
5.38.Email from the applicant to the Tribunal dated 29 June 2023 enclosing various documents listed above.
5.39.[A professional association] Full Member Certificate relating to the applicant valid to 7 July 2023.
Additional protection claims arising from the applicant’s pre-hearing submissions are summarised as follows:
6.1.She was living with someone called [name], who placed a police report which the applicant intends to obtain through FOI.
6.2.The applicant is helping with a woman called [Ms A], who is severely anorexic, and the applicant fears her asylum case could be affected by both women.
6.3.Both women may have decided to influence the applicant’s protection process for financial or political reasons.
6.4.The applicant’s ex-husband is [Husband A] is involved as well.
6.5.The applicant’s passport details were immediately leaked upon her entry to Australia by [Bank 1] to an outside web server.
6.6.The applicant was forcibly administered Fentanyl in a hospital in Brisbane.
6.7.Fraud is the crux of her case – as to message from [Bank 1] regarding internet banking.
6.8.Applicant felt she was in danger in Alice Springs while working for a family, and was trying to get away from them.
6.9.Applicant had a close call with a man with a gun in Alice Springs recently – she knew he was holding a gun under his tee-shirt, she got away but needs protection.
6.10.Applicant’s behaviour was such that she was concerned for her safety and needed to get away from that threat.
6.11.[Ms B] is stalking her.
6.12.Applicant believes [Ms C] impersonated her.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 5 July 2023. The applicant was unrepresented.
At the start of the hearing, the Tribunal gave the applicant an overview of the Australian legal requirements for the grant of protection as a refugee and as a person entitled to complementary protection.
The Tribunal noted the various medical reports from Queensland Health in 2017 and a letter from the psychiatrist, [Psychiatrist A], to the applicant’s GP, [Doctor B], in October 2022; and asked the applicant whether she had seen [Psychiatrist A] since, and about her current state of health. The applicant said she never saw [Psychiatrist A]; she saw [Officer A], a retired police officer in Canberra, who is an undercover agent. She said however she did talk with [Psychiatrist A] on the phone sometime since October last year, but he was expensive, and she wanted to do her course in Canberra. The applicant said she is not bad mentally other than having to deal with the challenges of her situation, and she is not on medication.
Applicant evidence
The following is the Tribunal’s summary of the applicant’s evidence at hearing:
10.1.The applicant is [an age] year old woman, a citizen of the United States, born at [a location in State 1]. As a child, she lived in [City 1], Maryland, then in early high school moved to [a town in] Virginia, where her parents ran the [named business]. She has [specified family members]. Over the years, they all worked in the [business].
10.2.The applicant believes, but can’t prove, that her biological father is her [Relative B], the brother of the man, [Relative A], who she grew up with and was held out to be her father. [Relative A] died last year. [Relative A] was the biological father of the applicant’s siblings, and she believes he was not aware that he was not her father.
10.3.[Relative A] was very abusive to the applicant’s mother, and he was an adulterer. They stayed married because her mother had nothing until not long before she died they bought a property in joint names. The applicant’s mother died a long time ago from an aneurysm. Although it was never proven, she believes [Relative A] murdered her mother by shaking; [Relative A] denied any responsibility and the police were never involved.
10.4.While growing up, the applicant and her brother were beaten repeatedly by [Relative A]. They were both traumatised, and would often hide at home and at school. The applicant’s [sister] decided at a young age to be away from the house as much as possible. She is very successful: a long marriage, a stable life, and a masters degree. In eighth grade, the applicant told her school that she and her brother were being beaten. Government people came to inspect the house and have a meeting with [Relative A] and her mother. The family resented her for disclosing the violence, and things became a lot worse for her at home. At age [age], she stopped interacting with [Relative A] and avoided being at home.
10.5.After finishing high school, the applicant [studied] at junior college. At age 18, she met her husband who was studying [subject 1] and later worked in his father’s [business]. A year later, they began living together, and remained so for many years. The applicant worked as [an occupation 1] during that time, and was close to her mother and [specified siblings]. They married in 1990, however the marriage lasted only a year and a half. Everything changed on the night of the wedding. He was controlling; he never hit her, but would hit the wall close by her. She didn’t think he would be a good father; he was friends with unscrupulous people. He later married a women with financial resources, had children and lives a luxurious life; she thinks he’s involved with drugs. The applicant has never been involved with drugs.
10.6.After the marriage ended, the applicant needed to get away from her ex-husband, so she went to live with her uncle and aunt in Michigan. She lived there for a year and worked in a [business 1]. The uncle was very close to [Relative A]. They tried to persuade her go to a nearby university, but she didn’t want to be under [Relative A’s] control in any way. She then spent a bit over a year training and working as [an occupation 2] in Hawaii, however it was very expensive to live there so she returned to Virginia.
10.7.In 1999, the applicant went to university in North Carolina to study [course 2]. While studying, she bought and lived in a condominium, which she later sold before moving to California. The applicant worked for an escort agency in Nevada to fund her university studies. There, she met and [Mr C] and they dated for about a year. [Mr C] wanted sex for free. He told her he was [studying] psychology and he wanted to study her. He had a [related business] and lived at [location 1]. Weird things happened. He was an alcoholic. He stalked her, and had his criminal and police contacts from [location 1] spy on her. One of them raped/sodomised her, but she didn’t report it because of her escort work. She sought safety at domestic violence shelters. She did her own sleuthing on [Mr C]. The police booked her for trespassing. [Mr C] later became a police officer. He is the reason, no matter where she moved in the US, he exploited her.
10.8.The applicant last had contact with [Mr C] in 1999 or 2000. Sometime after that, she had a [medical procedure]. She could see [Mr C] standing across the road from the hospital. She believes, but can’t prove, that he sold her blood or embryo/s or both on the black market to [Hospital 1]. [Mr C] was a police officer by then. People in Australia have also told her that this happened. She’s also been told that the child born from her stolen embryo was killed as a result of being thrown. Somehow her identity was used for money laundering to cover up a methamphetamine trade. People are using her ID for other purposes. People also want to kill her because she voted for President Trump, and she’s not going along with the New World Order.
10.9.The Freemasons are the core of her problem. She is not a Freemason or in a secret society, but she believes [Relative A] was. There’s the lie of her birth. She doesn’t know what’s going on. She just needs to get away from these people who are putting her life in danger.
10.10.Before deciding to come to Australia, the applicant went to [Country 2]. She started a [business 2] and worked in a [business 1], and for a time she was going well. She overheard people saying they wanted to feed her to the crocodiles. Eventually it didn’t work because the visa requirements changed, and she didn’t have the necessary funds, so she returned to California. Back then, she didn’t know about seeking asylum.
10.11.The applicant first came to Australia in January 2017. She had looked at all the English speaking countries, and was told that Australia is the number one place for refugees. She didn’t know anyone in Australia, but she had met an Australian, [Mr F], in [Town 3]. He was in disguise. He knows the father of the child born of her stolen embryo and later killed.
10.12.The applicant’s sister, [Sister A], who she is close to, gave her money from their mother’s estate, which she used to come to Australia. She also got money recently from [Relative A’s] estate, which she has used to buy a car and pay for her current study at [College 1].
10.13.When the applicant’s protection visa was refused for the first time, she returned to the US in August 2017. She got a job [in Town 3]. Someone told her they had to give her a job, but she didn’t understand why they said that. People were always making it look like she couldn’t do the job. They illegally used her ID to make it appear that she was still working there when she had already returned to Australia. The government pursued her for proof.
10.14.The applicant attended and volunteered at the local [Church 1]. The pastor there encouraged her to tell her story, however she believes the pastor is connected to a CIA agent who is involved with the illegal sale of blood and is also friends with [Mr F].
10.15.Once, when the applicant was outside a [store] in Los Angeles on a very hot day, she saw a [Country 3] woman holding a small child who was tightly bound, sweating, and listless. She suggested to the woman that the child needed water and to have the covers removed. The woman told her the child was bound so he couldn’t move; she made more money with in the child in her arms. Whilst this interaction was occurring, the applicant was being filmed. The video was then posted on [a website]. The applicant saw the video, which suggested she was racist, and the comments were dangerous. People refused to serve her in shops. She decided to leave for Australia for a second time because her life was in danger.
10.16.It was much worse for the applicant when she returned to the US in 2017 after her protection visa was refused for the first time. People sought her out to hurt and kill her, it wasn’t random. The CIA agent was very motivated because perhaps he believes that she was involved in doing something to hurt her child, that she is the criminal not the victim. Ice addicts will be judged by the New World Order. She can’t prove any of it. She doesn’t know what has happened in her life.
10.17.The applicant has never been involved with US Defence, money laundering, or the sale of her own blood. Others have done it for their own greed because of her relationship with [Mr C], which didn’t go his way. [Mr C] is mentally disturbed. He took advantage of her and her family circumstances.
10.18.The applicant has discovered all of these things from her own guessing, however she has no proof. She’s the victim of very strange circumstances. They did make a child without her knowledge. They make her seem crazy and criminally responsible. She can’t explain evil. Someone with a badge can ruin a life. The CIA has international reach. A CIA agent approached her in Brisbane; she had met him in [Town 1], California, he is an ice user, a heroin survivor, and mentally ill. He is also the owner of the [Business 2] and a billionaire.
10.19.Around two years ago, the applicant believes that former Australian prime minister, [Official A], rang and had a long conversation with her. She was living in Canberra at the time, and a police officer wanted her out of the country. She knew it was [Official A] because she recognised his voice. He pretended at the start to be the administrator of a Facebook page called something like [name], then asked her why she was in the country and told her Australia has strong immigration laws. The conversation was heated. She said she’d been forcibly removed from the street in Brisbane and admitted to hospital against her will, she needed to be safe from the US. [Official A] immediately recognised that [Mr C] had done things to make people believe that she had been involved in wrongdoing and financially benefited as a result. [Official A] told her it was [Mr C] who should be killed. He also said he would extend her visa.
10.20.The applicant wrote to [Official A] around Christmas 2021. She believes that after receiving her letter, [Official A] instigated an investigation at the Immigration Department in Canberra. Several AFP officers were involved and a now former Queensland police officer, [Officer A].
10.21.The applicant went to [Health Service 3] in Canberra. The CEO, [named], told her they would help her, but they didn’t.
10.22.The applicant has never met [Officer A], however they have communicated through Facebook. A [client] referred her to [Officer A] who also worked at [Agency 3]. She doesn’t know why [Officer A] was helping her. She believes she wouldn’t be here without him. He may have had an amorous interest in her. He was a white tile, now a black tile, but she has no idea what that means. [Officer A] owned a building in [Town 5]; the applicant was a tenant in the building. Her premises had a rat infestation, and she was told they were bugged.
10.23.The applicant was told that Australian Immigration don’t usually allow a person to seek asylum twice.
10.24.The applicant believes that if she returns to the US she will be killed, however she has no idea by whom. People are using her ID to shift criminal liability and launder money, and to make her look responsible. She believes it’s the CIA agent.
10.25.It doesn’t matter where she moved in the US, she had problems, and that’s because of [Mr C] who is a dirty state cop. He sold her egg to a federal cop. She moved so many times. She was told by people that she was being sabotaged. The threat is coming from a network of criminals. She wrote to the FBI and asked them to help her. She tried going to the police, but they know [Mr C] is the problem.
10.26.[Mr A variant] – who is really [Mr A] of the band, [Band 1], is a billionaire who has a connection to [Hospital 1]. He is tracking her.
10.27.Someone called the applicant from the UN in Geneva, trying to sell her Bitcoin. They pretended to be [Celebrity A], a heroin survivor. She believes the CIA agent has connections with the UN.
10.28.The applicant has been living in Canberra for the last six months doing a [vocational] course at [College 1]. She is on a break at the moment and is living with [Mr and Ms G] at [Town 6]. Being in school here as been a success. She’s learning a lot from an [occupational] specialist at [Employer 2], and is doing well in her course. She wanted her Tribunal case transferred to Queensland because she didn’t know whether she would be returning to school in Canberra after the break. After years of struggling, she feels really stable here knowing that she is away from the threats in the US.
10.29.The applicant is often in touch with her sister [Sister A], her brother [Brother A], and her nephew [Nephew A] in the US. She is close to these family members. They know she has applied for protection in Australia. They don’t understand why or what it’s all about, but they hope she gets the visa to stay here. They don’t know about [Relative A] not being her biological father.
10.30.[Relative A] had previously told her that she can’t prove anything, so leave it alone. All she can do is use her voice and hope that someone sees the connections or recognises a name. She will not return to the US no matter what happens.
10.31.The applicant wishes she knew who was doing all these things to her. There are too many coincidences, she can’t be hallucinating. She is now more stable than ever in her life. It’s been very difficult barely surviving all these years. It would be very difficult for her to go to another country now; she can’t go back to the US because it’s too dangerous. If people see that she’s anxious, it’s because she is anxious. She asked the Tribunal to consider granting her complementary protection.
Witness evidence

The Tribunal went through the list of witnesses the applicant had provided and asked the applicant about each of them as follows:
11.1.Chrys [Witness B]. The applicant said [Witness B] fixed her windscreen, he is a Christian and a nice guy who told her that this has been put on her and someone is sabotaging her.
11.2.[Psychiatrist A]. The applicant decided that she didn’t want [Psychiatrist A] to give evidence because she didn’t see him.
11.3.[Ms and Mr H]. They live in [Town 7]. They know the applicant was in danger from [Ms B] and that [Ms B] should be investigated.
11.4.[Witness A]. The applicant cared for her children.
11.5.[Witness C]. The applicant worked with her; she has a [business].
11.6.[Mr and Ms G]. The applicant is currently staying with them.
11.7.[Ms B]. The applicant decided that she didn’t need [Ms B] to give evidence because she is not a threat to the applicant.
The Tribunal asked the applicant whether she had told the witnesses about her protection visa application and that the Tribunal would be contacting them by phone to take evidence. The applicant said that she had not; she wasn’t concerned about it.
The Tribunal took or attempted to take witness evidence as follows. Given that the witnesses had no advance warning, the Tribunal considered it unreasonable to expect them to give an affirmation over the telephone.
13.1.[Witness B]. Initially, the witness was unaware of the applicant. He then recalled that he had fixed her windscreen once and she had told him a lot of personal things, and that people were spying on her. He said she has a split personality, and while she’s sincere in what she’s saying, she might be hallucinating about people tracking her. He said he didn’t have any objection to her staying in Australia.
13.2.[Ms and Mr H]. The Tribunal took evidence from [Ms H]. She said that she and her husband knew the applicant casually. They gave her some furniture, she stayed with them for a time, and they would see her every couple of months. She wasn’t aware that the applicant was seeking asylum. She said the applicant seems to be worried about being tracked by people, she feels nervous, victimised and intimidated, sometimes extremely scared, and changes her address to protect herself. She doesn’t know any detail, but thinks it’s something to do with the applicant’s history in the US. She said the applicant consistently told the same story of being fearful. She seems very nice, kind, and community minded, but there’s something in her background that’s affecting her.
13.3.[Witness A]. The witness said she wasn’t sure why the applicant was in Australia, something about safety, she didn’t ask. The applicant found the witness through an accommodation exchange website and stayed with her for a couple of weeks helping with cleaning and children like an au pair. She said the applicant clearly had some mental health issues, she was lucid most of the time, but she would get very anxious, things would spook her easily, and she would get paranoid if she thought she saw someone she recognised. The witness said the applicant was fine doing basic stuff as long as she stayed in the house; she wasn’t sure what was going on. The applicant then found a housekeeping job in central Australia.
13.4.[Witness C]. The answering machine message advised that the [business] was closed on a Wednesday. The Tribunal did not leave a message.
13.5.[Mr and Ms G]. The Tribunal did not leave a message on both occasions the calls went to the answering machine.
The Tribunal notes the applicant emailed the Tribunal after the hearing, on 7 July 2023, requesting the hearing recording and stating as follows:
I also feel the need to add that [Witness A] is not someone I discussed my refusal of my 866 visa based on mental status with. I needed to work, and was at her home with her children while she worked. I have no idea how she knows I went on to QLD, or how she knew I had a potential mental issue (which I do not except the anxiety of this situation). The place she referred to was [a location] in Northern Territory that I got a job at to clean. But, it was not a good place (I felt it was yet another place doing dubious things, and that I was there to clean, but potentially in danger). I suspected it, and got away from it, as I always do. I have never and would never have involvement with drugs of any kind, however anyone justifies it. If it is within my realm, I do not want the association. I am happy to be working on my own, and am very happy that I have business doing [service 1] in [Tow 5].
Country information
The Australian Department of Immigration and Border Protection Country Overview Briefing in relation to the United States of America dated June 2017 provides that (endnotes and references included in the source document):
15.1.The United States has an independent police force and judiciary, which respects the rule of law. Tension between police and African-Americans has resulted in protests in some cities. The tension arose because of the perceived bias and willingness to engage in arbitrary violence against African-Americans by police. Investigations have been carried out in several jurisdictions. Some changes in policy have been implemented, such as body cameras. Most law enforcement agencies are state and local government responsibilities. Arbitrary detention, and torture and other degrading treatment is prohibited. Concerns remain regarding the apparent impunity afforded those that mistreated [non-citizen] prisoners in Guantanamo Bay. Corruption is investigated and prosecuted, as necessary. The media regularly report allegations of corruption. Judicial independence is respected.
15.2.The United States has reduced the electronic surveillance on its citizens. Mass surveillance under s. 215 of the Patriot Act was ruled illegal by the Second Circuit Court of Appeal in May 2015. In June 2015, Congress passed the USA Freedom Act, under which intelligence agencies must make more specific requests to telecommunication companies to retrieve records. A privacy advocate will be included in deliberations of such requests. Privacy advocates continue to urge greater reform, in particular in regard to legislation and legislative instruments that allow for the surveillance of foreign nationals.
15.3.The United States has an adequate social infrastructure system. Seniors (over 65), and some disabled and low-income individuals are eligible for government-provided health care. Approximately two-thirds of the population is covered with private health insurance. These policies are either employer-based or individual. Private health insurance is mostly regulated at the state level. Approximately 10 per cent of adults do not have any medical coverage. Approximately 85 per cent of hospital beds are in private hospitals (of which, most are in not-for-profit hospitals). Most hospitals are legislatively-required to provide emergency care to all patients, regardless of their insurance level (or lack thereof). Education policy is determined at state level. School education is compulsory in all states, though the relevant ages differ. In most states, children must attend school until they are 16. Public education is free, though there are associated costs. These include books and uniforms. Public schools are often funded through property taxes. Public schools in wealthier neighbourhoods will often be better funded than other areas.
The February 2023 White House Report on Mental Health Research Priorities provides (inter alia) that:
16.1.The Biden-Harris Administration has taken unprecedented action to address our nation’s mental health crisis. In March 2022, President Biden announced a three-part strategy to transform how we understand, access, and treat mental health in America as part of his Unity Agenda. Additionally, we provided nearly $500 million to help states transition to the 988 Suicide and Crisis Lifeline, helping countless individuals get more timely access to confidential counseling and crisis care. Through the Bipartisan Safer Communities Act, we are awarding hundreds of millions in grants to strengthen youth and community mental health services. And, we are in the midst of building a more robust pipeline of mental health providers, expanding school-based mental health services, and training first responders how to support individuals with mental health challenges.
16.2.The United States is facing an unprecedented mental health crisis amongst children, adults, families, and communities. Even before the COVID-19 pandemic, one in five adults age 18 or older met criteria for having a mental illness, and in the case of more than 13.1 million American adults, to the point where it substantially interfered with or limited one or more major life activities. As pointed out recently by the U.S. Surgeon General, this problem has been particularly severe amongst youth. More than half of parents express concern over their children’s mental well-being. And the CDC has reported that in the decade preceding the pandemic, from 2009 to 2019, the proportion of high school students reporting persistent feelings of sadness or hopelessness increased by 40%; the share seriously considering attempting suicide increased by 36%; and the share creating a suicide plan increased by 44%. Additionally, communities of color are disproportionately undertreated—even as their burden of mental illness has continued to rise.
16.3.The National Institute of Mental Health (NIMH) Early Psychosis Intervention Network (EPINET) currently links 101 Coordinated Specialty Care (CSC) programs, which are funded by the Substance Abuse and Mental Health Services Administration (SAMHSA), for individuals with early psychosis in a nationwide learning health system. Though new, this program is undertaking research projects in community clinic settings to understand how to: reduce the duration of untreated psychosis, decrease substance and alcohol misuse, prevent suicide, improve cognition and motivation, test telehealth delivery, and improve long[1]term outcomes for diverse populations.
16.4.Serious mental illness (SMI) is defined as a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities. Examples include, but are not limited to: schizophrenia and related psychotic disorders, bipolar disorder, and severe depression. The burden of serious mental illness (SMI) is significant on an individual and population level. SMIs typically impair daily functioning, are associated with significant personal and societal financial impact, and are among the leading causes of poor health and early mortality worldwide. While there are some effective treatments for SMIs, there is a need to improve these treatments and develop new ones.
16.5.Prior research has established the effectiveness of a range of treatments for SMI, including medications, cognitive and behavioral therapies, and psychosocial rehabilitation services. Recent studies illustrate the value of combining cognitive remediation, illness management training, physical activity, and rehabilitation services to improve real-world functioning. To build on this progress, new research is needed to increase adoption of and reduce barriers to under-used medical interventions and to test scalable strategies for delivering adjunctive rehabilitation interventions. Prime examples include reducing the side effects of clozapine to enhance uptake, developing long-acting injectable medications to facilitate adherence, and improving clinical neuromodulation therapies. Additional studies could test interventions that target social cognition to promote social integration, such as adding cognitive remediation therapy to supported education, housing, or employment programs. Finally, new research could refine existing therapies to evaluate acceptability and clinical benefits in studies tailored to the needs of persons with SMI. To increase broad and sustained uptake of effective services, this research is required in community settings with diverse and representative participants.
16.6.The Accelerating Medicines Partnership® Program - Schizophrenia (AMP® SCZ), which is a public-private partnership between the NIH, the FDA, the European Medicines Agency, and multiple public and private organizations. The overall aim of the AMP® SCZ initiative is to generate tools that will considerably improve success in developing new medications for individuals who are at clinical high risk of developing schizophrenia or psychotic disorders. Though the program is new, it has established two large research networks focused on identifying measures that predict disease trajectory and outcomes for individuals at high risk for psychosis. These findings will allow the development of algorithms that can aid in predicting the course of illness, and allow for early intervention and testing of new pharmacologic treatments that may prevent the development of schizophrenia.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering the applicant’s claims and evidence, the Tribunal has taken account of the:
17.1.Migration and Refugee Division Procedural Law Guide regarding competency to give evidence.
17.2.Migration and Refugee Division Guidelines on Vulnerable Persons.
17.3.Migration and Refugee Division Guidelines on the Assessment of Credibility.
17.4.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
17.5.Relevant country information set out in this decision record.
The Tribunal observed at the start of the hearing that the applicant was settled, attentive, cooperative, and able to communicate clearly, and on that basis made an assessment that the applicant was capable of participating in the hearing and giving evidence. The Tribunal maintained this assessment for the duration of the hearing.
The Tribunal acknowledges the complexity of the applicant’s history and experiences in the US and Australia, her perceptions of her history and experiences, and her serious difficulties in coping with those perceptions throughout her life.
The Tribunal observed the applicant to be an intelligent person who continues to work hard to cope with her serious difficulties.
The Tribunal considers it is likely the applicant suffered trauma as a result of witnessing and/or directly experiencing domestic and family violence, and may continue to suffer trauma.
The Tribunal accepts the applicant’s evidence that she was raped and that she did not report the rape to police because of her fear of repercussions as a result of her working for an escort agency. The Tribunal considers it is likely the applicant suffered trauma as a result of the rape, and may continue to suffer trauma.
The Tribunal notes the applicant’s claims that underpin her fears of being harmed or killed in the US are expansive, disordered, and evolving through her written and oral evidence set out in detail in this decision record. The central themes of the applicant’s claims are that she believes: her identity has been used or stolen to facilitate money laundering and the concealment or protection of illicit drug trading for others’ financial benefit; people think she is implicated in these activities and criminally responsible; people think she is part of the Freemasons or other secret society and subscribes to the beliefs of the New World Order; people are targeting her because she is a Trump supporter; and there is a network of police officers, criminals, drug addicts and a CIA agent in the US, also with reach into Australia, that tracked and sabotaged her in the US, and will continue to do so if she returns to the US.
The Tribunal notes the applicant said on a number of occasions during her oral evidence words to the effect that she has come to these beliefs from her own guessing, she can’t prove they are true, but they are not coincidental, and she doesn’t understand what has happened in her life. The Tribunal also notes the applicant said she doesn’t know who would harm or kill her.
The Tribunal considers the applicant believes her claims to be true.
The Tribunal accepts the applicant fears being harmed or killed in the US.
The Tribunal considers the witnesses’ evidence credible. The Tribunal does not consider the applicant’s post-hearing statement regarding the evidence of one of the witnesses adversely affects the credibility of that evidence.
The Tribunal considers the applicant’s claims, separately and collectively, are not capable of making rational and plausible sense to a reasonable and objective onlooker, despite the applicant’s belief in her claims and her fear of being harmed or killed.
The Tribunal notes the following extracts from the [Hospital 3] Mental Health Services Transfer of Care report dated [in] July 2017:
29.1.Primary diagnosis – Paranoid Schizophrenia.
29.2.…expressing complex and bizarre persecutory delusional beliefs. Actively seeking asylum on Australia on the basis of her delusions. Referred to [Unit 2] by [a named] program given concerns for her mental state. Assessed by [Unit 2] ([date]) whereby she presented as acutely psychotic, irritable, with poor engagement.
The Tribunal notes the following extract from the [Hospital 3] Mental Health Services Transfer of Care report dated 2 August 2017:
30.1.Her psychiatric history is largely unknown. During [the applicant’s] admission she denied a previous psychiatric diagnosis however she inferred that she had been diagnosed with psychosis, and that people had attempted to have her hospitalised. She later recanted this statement. She denied previous psychiatric treatment, nor inpatient admission. [The applicant] reports a history of physical and sexual abuse (perpetrated by father). She reports a history of itinerancy in USA, moving states multiple times in the last few years, likely secondary to delusional beliefs. [The applicant has a history of homelessness in USA.
The Tribunal notes the following extracts from consulting psychiatrist, [Psychiatrist A], to GP, [Doctor B], in relation to the applicant dated 11 October 2022:
31.1.She attended this assessment seeking a professional opinion in regards to her mental health in context of her application for permanent visa in Australia. In context of this, [the applicant] did not want me to check any of her previous medical records including your referral letter.
31.2.…I must admit many of her reportings seem completely implausible, however I have no means to find out whether they are purely a product of her delusional thinking or reality.
31.3.There are a number of instances of abuse in her childhood and teenage including sexual abuse. She reported a number of traumatic events and situations throughout her adult time including rape.
31.4.It is difficult to ascertain whether her account of events presents delusional productions/paranoid thoughts or reality, however lots of elements of her account point towards paranoid production.
31.5.She seemed to have reduced insight into her condition.
31.6.I asked [the applicant] to follow up review with me where we will continue my examination and exploration, hoping to reach diagnostic clarification and specific management plan.
The Tribunal considers the medical reports referred to above indicate it is possible or likely the applicant’s claims are a product of a mental health disorder rather than real life experiences, and lend support to the Tribunal’s conclusions.
The Tribunal considers the applicant’s written and oral evidence as set out in this decision record, on the face of it, adequately demonstrates the lack of credibility of the applicant’s claims. The Tribunal considers it is not necessary or respectful to the applicant to explain in this decision record the failure of each claim separately on the grounds of lack of credibility.

The Tribunal finds the applicant’s claims overall fail on the grounds of lack of credibility.
The Tribunal considers that if the applicant returns to the US, she is likely to experience ongoing fear of being harmed or killed because she believes her claims to be true.
Based on the relevant country information, the Tribunal considers the applicant would have access to appropriate state protection and mental health care to assist her in managing her fear of being harmed or killed.
The Tribunal notes the applicant appears to have a close relationship with her sister [Sister A], brother [Brother A], and nephew [Nephew A] in the US. The Tribunal considers it is likely the applicant would be supported by these family members in managing her fear of being harmed or killed.
The Tribunal considers that if the applicant returns to the US, despite her fear of being harmed or killed, she is unlikely to be harmed or killed on the basis that the Tribunal finds the applicant’s claims fail on the grounds of lack of credibility.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
Based on the consideration of claims and evidence, the Tribunal finds that:
40.1.The applicant is a citizen of the United States and a non-citizen in Australia.
40.2.The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
40.3.If the applicant is returned to the United States, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
40.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the United States there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2023] AATA 3318

7 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal