2006884 (Refugee) - [2021] AATA 5199

2006884 (Refugee) [2021] AATA 5199 (1 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006884
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Jane Marquard
DATE:1 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2021 at 10:28am
CATCHWORDS
REFUGEE – Protection visa – United Kingdom – persecution from ex-partner’s family – sexual assault – issues with social services and the law – mental health issues – marriage to Australian citizen – decision under review affirmed

LEGISLATION
Acts Interpretation Act 1901, ss 15AA, 15AB
Migration Act 1958, ss 5AAA, 36, 65, 91R(1)(a), 499
CASES
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AGA16 v MIBP [2018] FCA 628
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BVT20 v MICMSA [2020] FCAFC 222
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCCA 151
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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 citizen of the United Kingdom. She was born in [year]. She first arrived in Australia [in] January 2015 on a Subclass 651 E-visitor visa. This visa ceased on 28 April 2015. She then remained in Australia unlawfully for a period of 10 months.
On 4 February 2016 she lodged an application for a Subclass 820/801 partner visa, which was refused on 30 August 2016 as she did not meet Criterion 3001 of Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations). Specifically, she did not apply for the visa within 28 days of the last substantive visa held.
The applicant applied for a protection visa under s 65 of the Migration Act 1958 (the Act) on 27 February 2017. She claims to fear harm from her ex-partner’s family if she returns to the UK. She also fears that she will be homeless and that her mental health will decline.
A delegate of the Minister for Home Affairs refused to grant the visa on 25 March 2020. The delegate refused the visa on the basis that the harm she feared was not for one of the reasons set out in the legislation, and she could obtain protection in the United Kingdom.
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
SUMMARY OF FINDINGS
For the reasons set out below, the Tribunal has decided to affirm the decision under review.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. 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.
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]).
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836).
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84,[1] made under s 499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[2] and 'Complementary Protection Guidelines' [3] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4]
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.
[2] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[3] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines.
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Principles of interpretation
The Tribunal must apply Australian principles of statutory interpretation and in particular, the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).[5] Section 15AA of the Interpretation Act requires that regard must be had to the purpose or object of the Act, and s 15AB permits recourse to extrinsic materials including the explanatory memorandum or second reading speech and any treaty or other international agreement referred to in the Act. Australian courts will favour a construction of the Act and Regulations which conforms to Australia’s obligations under an international treaty, or convention.[6]
[5] MIMIA v QAAH of 2004 (2006) 231 CLR 1 at [34].
[6] MIMIA v QAAH of 2004 (2006) 231 CLR 1 at [34]; MIEA v Teoh (1995) 183 CLR 273 at 287–8.
International jurisdiction can provide guidance[7], as can the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (the Handbook)[8] although the Handbook is not binding.[9]
[7] See for example Chan v MIEA (1989) 169 CLR 379 at 392, Somaghi v MILGEA (1991) 31 FCR 100 at 117, NBGM v MIMIA (2006) 150 FCR 522 at [158]–[160].
[8] UNHCR, re-issued February 2019.
[9] SZOXA v MIAC [2011] FMCA 298 at [47].
President’s Direction
The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[10]
[10] Issued under Section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal exercised its discretion to hold the hearing via video due to restrictions necessarily imposed as a result of the COVID-19 pandemic and the fact that the applicant was being held in immigration detention. The Tribunal is satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant - most importantly that she is in detention such that in the interests of justice, the matter should be heard expeditiously. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[11] There may have been significant delay to the matter if the hearing was not conducted by video.
[11] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that she could hear and see, and the Tribunal was able to interact with the applicant and maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and relevant independent sources about the United Kingdom.
Summary of evidence in Department files
The applicant provided details of her claims in an application form to the Department, as well as supporting documents. There was also information contained in the Department file pertaining to her spouse visa application. A summary of her evidence follows.
She was born in [Scotland] in [year]. Her parents were both from Scotland and are currently living there. She also has a sister living in Scotland, and a son, born in [year]. She said that she is in contact with them every day.
She attended school in Scotland until [year]. From 2003 to 2005 she was at [an educational institute in] West Lothian.
She is a Catholic. She listed her occupation as ‘unemployed’.
She said that she travelled to [Country 1] on holiday for a month in 2007.
She claimed that she left the UK as she had ‘hard times’, due to Social Services telling her that she must no longer remain in her ex-partner’s house. She said that she was ‘ordered’ to be with her current partner or face losing her son for good.
She also claimed that she was the victim of rape and abuse by two men in places she lived. She was facing homelessness so came to Australia to be with her husband of two years. She said that there were threats to her life, safety and well-being. She described the harm she suffered as follows:
The harm I received violence on me. I was beat up nearly threw onto oncoming train and busy traffic on road. Kidnapped me from leaving home, the man threatened to kill if told anybody his name is [Mr A]. The second was while staying at my ex’s house – he stalked me and while skyping my current partner he aggressively held me down and assaulted me. Ever since I had nightmare. His name is [Mr B].
She said that if she returns to the UK, she would most certainly be subject to ‘being fully homeless’. She said that she would be very frightened and unstable, and her mental health would ‘go downhill’ due to malnourishment. She claimed to fear seeing her abusers who would threaten to kill her if they saw her. She said that if she returned there would be a high risk of her son being removed from his father, herself and her family. She said that he is thriving with his father, and at a special needs school.
The applicant claimed that the police helped her, but they were only able to ban the offenders from the town where she lived or visited, which is where her family lived – [named areas], Scotland. She said that she would be harmed by her ex’s family and be in ‘never-ending fear’, and her mental health would suffer due to homelessness and financial stress. She said that the rapists are still at large.
She said that she met her current husband online, and they married [in] February 2015 in [Victoria], Australia. Her husband, [Mr D], was born in [another country], but has Australian citizenship. In her spouse visa application, she said that he received the disability pension from Centrelink and was doing casual work.
She claimed that she could not relocate because she would be homeless and has no-one to live with. She said that she and her husband are on a tight budget. She said that if they separate their mental disabilities would become more severe.
She said that when she had her son, her partner’s family bullied and threatened her. They alienated her son with their ‘nasty comments’. They also made up vile accusations about her parenting. She said that they ‘ganged up’ on her. She said that ‘the health visitor’ went to her home, and ‘when I turned my back to see what my baby was doing’. She said that her former partner’s family spread rumours and hate and made her out to be the ‘world’s worst mum’. She said that she was only [age] years old at the time. The health visitor rang Social Services which made her afraid and she received a letter to attend a meeting and she ‘freaked out’ and so she paid for a flight back to Scotland. She said that she arrived back from [South Wales] [in] July 2010 and five days later she got a knock on the door and Social Services were there. Her ex-partner’s family had rung them to say that she had run away. However, she had left because of the ‘assault from ex partner’s sisters’, who wanted to ‘sabotage her as a parent’. She said that she lost her son to temporary care. She and her husband attended parenting classes and her parents became ‘kinship carers’ for her son for a short time. Then they got a house and she was not allowed to live there ‘but eventually was able to’ and they lived as a family unit. She said that then Social Services told her to leave as she had a new partner. Her ex-partner thought it was harsh and knew how much she loved her child. She said that she lives in fear of Social Security and became mentally unwell and abused alcohol.
A Medical Certificate dated 8 February 2017 from [a medical clinic] stated that she had seen a psychologist and psychiatrists for her anxiety.
She said that she has overstayed her visa, explaining, “I became homeless and got myself a bridging visa so I was not unlawful for very long. I attended immigration everytime. Not been unlawful since”.
A GP Mental Health Treatment Plan dated 8 April 2016 was provided indicating that the applicant has generalised anxiety/personality disorder.
[Mr C], in a statement dated 27 February 2017, said that he is the ex-partner of the applicant and the father of their child. He had known her for 10 years. He also knows her husband. He said that they make each other happy.
A Statutory Declaration of her husband dated 27 February 2017 was also provided. Her husband said that he had known the applicant for over 4 years. He said that he had witnessed her difficult situation with social services and from the sexual attack. She had a good reputation in the community in Australia and her mental state has improved since leaving Scotland and getting out of the ‘horrific situation that made her mentally unwell at the time’.
A list of documents provided to the Department is set out in Attachment B.
Summary of evidence before the Tribunal
The applicant provided written submissions to the Tribunal prior to hearing. She said that there were serious threats to her life and safety in the UK from her ex-partner’s siblings. She said that reports had been made to [the] police. She said that she is afraid of them. She said that the offenders were to be arrested, but the police ‘didn’t know their addresses’.
She said that in Australia she has received much better help for her mental health conditions than she did in the UK. She said that her mental health would suffer if she had to return to the UK. She said that she had been with her husband in Australia for almost seven years. She said he was the main reason she wished to reside in Australia. Her parents-in-law, two sisters-in-law and a number of nieces and nephews also reside in Australia. She wants to continue her life with her relatives in Australia. She said that she is happy and settled in Melbourne.
The applicant appeared before the Tribunal by video from the detention centre on 14 October 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant confirmed that she could see and hear well.
As the applicant had referred to a number of mental health issues in her application to the Department, the Tribunal asked her how she was feeling on the day of the hearing. She said that she has stress and anxiety and would lie down if necessary, but she felt well enough to appear before the Tribunal for the hearing and was not on any current medication. She said that her stress and anxiety settle down, but every now and then she becomes very stressed and starts shaking and it ‘gets very bad’. She was asked if she had seen medical practitioners in detention. She said she had seen the nurse and mental health nurse a few times. She said that although she is not on medication, she ‘needs to look into it’.
She said she has always had anxiety and depression. She said that she also has panic attacks. She said that she could not remember if she had counselling or was on medication while living in the UK.
She said that for the past 18 months she had not had counselling and she ‘still needs to deal with incidents that occurred in my past’. She said that she ‘normally sees counsellors in Australia’, and remembers she ‘saw her doctors a lot’. She said that she was on medication in 2013 but ‘felt ok after a year and came off it’. She said that normally her anxiety is ‘not that bad’ and ‘only flares up when there is a lot of stress’, as was the case currently. She said that she had ‘everything lined up there’ and attended programs to control her alcohol and sessions to learn how to keep calm. She said that in detention she feels sick and anxious. She said she has, however, learnt how to control anger and can ‘walk away from situations’.

The applicant told the Tribunal that when she came to Australia, her husband’s family bullied her and took out apprehended violence orders against her as they did not want the relationship between herself and her husband to succeed. She said that she inflicted some domestic violence on her husband. She said that she went to gaol for this domestic violence offence after ‘not handling the loss of family members in 2019’. She said that at the time she was drinking a lot of alcohol, and ‘was not in a good mindset’. She said that her partner was ‘accidentally injured’ and the court made it look worse than it was. Her partner was hurt with a knife. She said that she had a knife in her hand and ‘got caught off balance as she caught her foot in the sofa’ and the ‘knife went into him’. She said that she was shocked when it happened. She said that he ‘only ended up with a cut to the face and double vision for a couple of months’. She said that he could still drive. He did not want her charged with an offence as ‘it was an accident’. She said that she was on remand from [April] 2020 to [November] 2020. She said that she was then imprisoned again in December 2020 for breach of an ‘intervention order’, which she said was ‘not planned’. She said that she only served 72 days of the sentence, and the rest was served on remand. She said that ‘it was very difficult for her anxiety’.
She told the Tribunal that she was placed into immigration detention after she was released on a Community Corrections Order for 18 months. She said that she is before the ‘judge in the county court’ [in] November 2021 as he is awaiting the outcome of her protection visa review.
The applicant confirmed that she was born in [Scotland] in [year]. Her parents are both from Scotland and are currently living there. Her mother [works]. Her father is [an occupation]. Her sister, who is two years younger than her, works too, but she cannot remember what she does. The applicant also has two cousins and an uncle in Scotland. Her grandmother died in 2019, which was difficult for the applicant as they were very close, particularly as she died a couple of days after the applicant spoke to her on the telephone.
Her son is now aged [age] and lives with his father. When the applicant was living in Scotland, she lived with them. She was in a relationship with his father for five years before they split up. He is not working as he looks after their son. She talks to her son and ex-partner every day by telephone. She does not talk to her father or her sister. She does talk to her mother, to whom she is close. Her parents live 10 minutes away from her ex-partner and son, and so her mother goes over to see her son all the time, as does her sister. Her father has a bad drinking problem, so they keep her son away from him.
She attended primary school [and] then went to a special needs school in Edinburgh, because she had ADHD ‘as far as she knows’. She said that ‘because of her behaviour’ she did not do well at mainstream schools. She went to vocational skills college when she was 18 for two years. She said that she has ‘never really been able to work’ but she did volunteer in charity shops until she gave birth to her child. After that she had a job with a [business].
She met her former partner on a dating website in 2007. He ‘knows me well and still talks to me often’. She said that they are ‘good mates’. His family, comprising his parents, two sisters and a brother, and nephews and nieces, live in Wales. She said that her son [was a young child] when she and his father split up but she remained living in the house with them. She said that she ‘ended up with Social Services as I had issues with them’. She said that Social Services told her that she was better off living out of the house. She said that if she returns to Scotland, she will have ‘issues with them’. She said that she would not have a home as she could not go back to her partner’s house as it would cause problems with Social Services, and she also could not go to her parents’ or sister’s house as she had a falling out with her sister and father.
She said that when she was living in Scotland, her ex-partner’s family wanted to split them up and made false accusations about them. She said that she and [Mr C], her ex-partner, fought this in the court, and family’s claims ‘got thrown out of court’. She said that she did not want to live with their abuse. She said that his family made reports to Social Services that she had run away and ‘kept judging me and watching my every move’. She said that they would ‘come out like vultures’ and would not leave with her alone. She said that Social Services listened to rumours about her. She said that leaving her son behind was the last thing she wanted to do and she did not investigate the visa situation properly. She said that she did not know that she had to get a certain visa to stay permanently and so she applied for a visitor visa which was not the most suitable visa for her situation. She said that she wanted to move permanently to Australia, and then invite her son and his father to join her in Australia. She said that she needs a permanent visa because her former partner’s family are ‘psychotic’ and will ‘come after me’. She said that [Mr C]’s sister bashed her when she was holding the baby. She said that [Mr C]’s brother has been in and out of prison and was on drugs. She said that she was chased around the house by him, and had to barricade herself in. Asked if his family members visited them at home, she said that they did not come to the house. Her former partner went to visit them sometimes. However, he has not seen them for a while now. They live in Wales and her son and former partner live in Scotland.
She said that her former partner made a report to two police stations about the incidents of violence inflicted by his family members, and the threats that his family made on her, but the police did not know the addresses of his family members so they did not charge or arrest them. She said that the police made her block everything on social media so that his family could not say things about her. She said that his sisters said that they would kill her. She said that she could not remember what happened, but knows that the police did not charge them, as they did not have addresses for them. Asked why the police could not locate their addresses if they had wanted to do so as this is part of police business everyday, she said that she would have thought that they could have found them if they had wanted to do so.
She was asked if she considered getting an apprehended violence order against them. She said that she did not consider this, as she moved to Australia instead.
She said that the threats have continued on social media, but she did not see them as the police told her to block them.
She said she does not feel safe anywhere in the UK as they would find her and get her. She said that she wants to live ‘where she is used to’. However, she feels better off in Australia with her partner, doctors and his relatives. Her husband’s sister sometimes visits and brings a baby with her.
The Tribunal asked her if she still fears them even though they live in Wales and she would be in Scotland, which she confirmed was six hours away. She said that she still feels that they would harm her as they had previously threatened her.
The applicant was asked if she could provide any government documents about being evicted from the house or family law arrangements or police reports. She said that there was no court order and no documents from that time. She was asked why she did not remain in the house with her son if there was no court order. She said it was because they threatened to take [her son] away. She said that now everything is settled, and Social Services are not involved with the family, but they would be if she returned. She said that so much has happened that she cannot remember everything, but she thinks her parents were kinship carers for a while. Her mother ‘let her do her usual stuff with [my son]’ when she was a kinship carer.
The Tribunal asked her if she could live with family members if she returned to Scotland. She said that she cannot go to her parents’ house as her father had disowned her and she had had a falling out with her sister. Her family cannot financially support her in independent accommodation as her mother only has enough for them to get by. She said that she would have to get something from the council or access homeless accommodation.
She said that she was sexually assaulted in Scotland, as described in her application. She said that there were four people she thought were friends, and they turned out not to be.
She said that she knew one of the perpetrators for eight years. He was married with children. His name was [Mr B] and he followed her around, slammed her down and sexually assaulted her in 2013 or 2014. She did not make a police report as she felt it would be too hard and thought that she would not be believed. She said she started to talk to the police at the police station in 2018 but did not finish the report by providing all the details. After the sexual assault incident she had no contact with the perpetrator and did not see him again.
The other perpetrator was called [Mr A]. The incident occurred when her son [was] [a young child]. [Mr A] was visiting and refused to leave and would not let her leave the house. She said that he ‘controlled her’. She said that he ‘bashed’ her, and even ‘bashed my son’. She said that her partner was asleep at the time. Asked if she called out, she said that she did, but he did not wake up. She said that ‘one time he hung me over a train track.’ She said that after this she went to live with her mother for a while. She did not see him again.
Asked if she still fears these men if she returned to Scotland, she said that she does not know what they are doing, but it is mostly her ex-partner’s family that she is afraid of.
She said that she came to Australia to be with her current partner. She met him on a dating site. They got engaged and planned six months in advance for her to come over to Australia. His mother bought her an air ticket. She arrived [in] January 2015 on a Subclass 651 E-visitor visa and [in] February 2015 they were married. Her visa ceased on 28 April 2015 and she remained in Australia unlawfully for a period of 10 months.
She said she has been married for seven years. Her husband is an Australian citizen. His family emigrated to Australia when he was two years old. He used to work but is not currently working. She said that none of his family members attended the wedding, and it was just ‘me and him, none of them would have a bar of it’. She said that with the exception of his mother, his family members do not want to support her. She said that they are ‘starting to be nicer to her’. She said that she needs to ignore them and ‘stop having a go’. She said that his sisters are very judgmental, and his father took out an apprehended violence order against her for ‘nothing’. She said that she and her husband were in the garage listening to music and she went to bed and woke up to the police, ‘all because his father did not accept her’. One sister also took out an order against her as this sister is a ‘troublemaker’ who ‘has it in for her’. She said that this sister tried to break up her marriage and called the police on the applicant. The sister is always ‘interfering and having a go’.
She said that she is on a Community Corrections Order for breaking a car window while she was reporting to the Department of Justice. She mentioned that Italians threatened to kill her family when she was living in Scotland. She reacted to it as she was not ‘handling emotions back then’.
She was asked why her ex-partner’s family in Wales would still want to harm her if so much time has passed, and they live in different towns. She said that they would still want to harm her, as they do not change, and the last threat was ‘a couple of years ago’.
She was asked if she could take out apprehended violence orders against these family members or seek police protection, given that Scotland is a place where there is a rule of law and effective police protection. She said that even though she could do this, it does not mean that she wants to go back there. She said that she does not feel comfortable that they would ‘listen to the order’. She said that the sister goes out with someone who is a convicted murderer. She said that she had cuts on her face from the sister. She said that when she lived in the UK, she reacted the ‘wrong way’, but she is happy in Australia.
In concluding comments, the applicant said that she wants to live with her partner and his relatives. She said that they have nephews and nieces in Australia, and she does not want to miss out on them. She said that she is comfortable with her doctors in Australia and sees them often and gets on well with them. She does not want to miss out on the connection with these doctors. She said that she feels safe in Australia, loves Melbourne and wants to live and stay with her partner. She said that she has been happier than she has been for a long time.
Court documents
Court records indicate that the applicant was sentenced by the Victorian County Court [in] February 2021 to 72 days’ imprisonment in relation to a number of contraventions of intervention orders. [In] September 2021 she was sentenced to 351 days’ imprisonment by the Victorian County Court on a charge of intentionally cause injury, although account was taken of time already served, which amounted to 436 days’ imprisonment.
CONSIDERATION OF CLAIMS AND EVIDENCE
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the incidents in Scotland took place as described (findings of fact).
·Whether the applicant fears harm for one of the stated reasons.
·Whether there is a real risk of significant harm from her former partner’s family members.
·Whether there is a real risk of significant harm from the perpetrators of sexual assault.
·Whether there is a real risk of significant harm because she would be homeless or not have access to medical care.
These issues and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from the United Kingdom, which expired [in] 2017. The Tribunal is satisfied, on the basis of her passport, that the applicant is a national of the United Kingdom, and that the United Kingdom is the receiving country for the purposes of the legislation.
Findings of fact
Taking a reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm.
The Tribunal recognises that assessment of credibility is an inherently difficult process, that there are special considerations in relation to asylum seekers and that assessment of credibility can be based on imperfect perceptions of truth[12].
[12] Fox v Percy (2003) 214 CLR 118.
As assessment of credibility is a complex task. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[13] As a threshold principle, in the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[13] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[14]. A similar approach is taken in the Department’s Refugee Law Guidelines[15] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[16], which provides useful guidance for this Tribunal.
[14] SZLVZ v MIAC [2008] FCA 1816 at [25].
[15] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[16] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time or trauma. A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[17]
[17] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal notes that the applicant has never been legally represented. The Tribunal has taken this into account in consideration of her evidence, as a representative may have been able to tailor the evidence in a more professional manner in line with legislative requirements.
The Tribunal also accepts that the applicant has suffered from mental health issues, although no current medical report was provided. She mentioned in passing that she went to a special needs school in high school, which she thought was for ADHD. She also told the Tribunal that she suffers from anxiety and depression and has always done so. On the Department file was a [General] Practice Patient Assessment dated [August] 2015. The doctor diagnosed the applicant with anxiety and panic attacks and noted the applicant’s known ADHD and autism and her history of alcohol abuse and self-harm. The Assessment included a Mental Health Treatment Plan recommending the applicant receive counselling from a psychiatrist and access cognitive behavioural therapy.

Recent medical notes from International Health and Medical Services from the detention centre refer to anxiety, depression, ADHD and borderline behavioural disorder. The Tribunal notes also that in her testimony she referred to anger problems and issues with memory. The Tribunal notes that she was convicted of intentionally cause injury, has had a number of apprehended violence orders taken out against her and has spoken of conflict with family members in Scotland and Australia, all of which may be consistent with borderline behavioural disorder and/or autism and/or anger issues, although the Tribunal makes no medical assessment about this. The Tribunal accepts that the applicant suffers from the mental health issues described by the medical practitioners and has taken this into account in assessment of her evidence in line with the Tribunal’s Guidelines on Vulnerable Persons[18]. The Tribunal notes that the applicant said that she felt comfortable giving evidence at the Tribunal hearing. She gave her testimony in a lucid, sequential manner although she had forgotten details of incidents, and at times she articulated her narrative in a manner which was a little confused and scattered. Overall, she appeared to understand entirely what was happening and to be able to express herself well. The Tribunal has, however, taken into account in assessment of her evidence her mental health issues as described, noting that her memory and ability to describe what has happened to her would be impacted by these conditions.[19]
[18] AAT, Guideline on Vulnerable Persons, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, UNHCR, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017
Taking all these matters into consideration, the Tribunal is satisfied that the applicant had significant conflict with her former partner’s family in the UK prior to moving to Australia in 2015. As her testimony has been consistent about this, the Tribunal gives her the benefit of the doubt, and is satisfied that her former partner’s family members inflicted some violence on her as well as insulting her. As the applicant’s evidence was somewhat disjointed and she also found it hard to remember details, the Tribunal does not make specific findings as to the kind of harm inflicted on her by family members. The Tribunal notes that she has admitted that she also reacted badly to the conflict and that her former partner’s father and sister took out apprehended violence orders against her, indicating that there may have been abuse on both sides.
The Tribunal is also satisfied that the applicant was sexually assaulted twice by people known to her, while living in the UK. Her evidence about this has been consistent. Her current husband has provided a supporting statement in which he says she told him about these incidents.
The Tribunal accepts the applicant had a number of interactions with Social Services in Scotland and that she felt that Social Services wanted her to leave the family home, although there was no order made. The Tribunal is satisfied that following this, she met her current husband online and travelled to Australia to be with him, and they married. Her evidence has been consistent about these matters and she provided a number of documents to evidence their relationship.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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[20].
[20] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The stated reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[21] The persecution feared need not be solely attributable to a reason set out in the legislation. However, persecution for multiple motivations will not satisfy the relevant test unless the reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
[21] Section 5J(4) of the Act.
The Tribunal is satisfied that the applicant genuinely fears returning to the UK, as she is uncertain about her living situation, had significant conflict with her former partner’s family in the past, including threats and violence, and is concerned about her relationship with Social Services. The Tribunal is not satisfied that she fears being persecuted for one of the stated reasons – race, religion, nationality, membership of a particular social group or political opinion. The harm which she fears from family members is harm inflicted for a private or personal reason, due to the feud and hostility between them, rather than for any of the stated reasons. Where there may be fear of revenge for past acts, the motivation is action by the applicant in the past, and is thus based on personal vendetta, rather than a stated reason.[22]
[22] Magyari v MIMA, Federal Court of Australia, O’Loughlin J, 22 May 1997.
In regard to possible harm from the perpetrators of the sexual assault against her, when asked about this at the Tribunal hearing, the applicant said that it was her former partner’s family that she feared. This answer suggests that she does not have a fear from the perpetrators. However, as she did mention that she feared the perpetrators in her Department application, the Tribunal has considered this potential harm as well. The Tribunal is not satisfied that the harm she may fear from these perpetrators is harm for one of the stated reasons, as it is harm that would be for the reasons of aggressive traits or other behavioural problems on the part of the perpetrators, or private hostility towards the applicant. There is no suggestion that the perpetrators wish to harm the applicant for any of the reasons set out in the legislation. Crime is by nature random and non-selective, and the motivations are usually economic or personal, or based on the characteristics of the aggressor, rather than for reasons of race, religion, nationality, membership of a particular social group or political opinion. Studies on crime[23] indicate that there are multiple motivations for criminal conduct and that crime is often opportunistic, rather than caused by a desire to inflict harm on a particular group.
[23] US Department of Justice, Agnew, ‘Why Do Criminals Offend?: A General Theory of Crime and Delinquency’, 2005, World Health Organisation, ‘Sexual violence: prevalence, dynamics and consequences, in Guidelines for Medico-Legal Care of Victims of Sexual Violence.
The Tribunal is also not satisfied that the fear of being homeless or of her mental health worsening is fear of harm for one of the stated reasons. Persecution involves the actions of persons to cause the harm, and there would be no such action to cause homelessness or worsening ill health. These outcomes would be the result of the applicant’s financial position and her relationships with her family as well as her underlying health conditions, rather than for one of the stated reasons.
Summary of findings in relation to refugee criterion
The Tribunal is not satisfied therefore that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of those reasons, were she to return to the United Kingdom.

100. The Tribunal is not satisfied therefore that the applicant meets the refugee criterion.
Does the applicant meet the complementary protection criterion?
General principles – complementary protection
101. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
102. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
103. The legislation provides that torture must be intentionally inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR). ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s 5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct. Degrading treatment or punishment as set out in s 5(1) involves extreme humiliation which is unreasonable.
104. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Is there a real risk of significant harm from the applicant’s former partner’s family members?
105. The applicant has claimed that she fears violence, bullying and harassment from her former partner’s family members. She has said that some of the family members had been involved in crime or had relationships with criminals.
106. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.
107. The Tribunal is not satisfied that there is a real risk of significant harm, in the sense of a substantial or non-remote risk[24], of any of the kinds of significant harm set out in the legislation, including the most relevant categories, being arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The reasons for this finding are as follows.
[24] Chan v MIEA (1989) 169 CLR 379.
108. Firstly, the applicant left the United Kingdom in 2015. It is likely therefore that the hostility between herself and the family has calmed, given the length of time that has passed and the lack of communication between them. The applicant told the Tribunal that the applicant’s partner is not in touch with his family except for occasional visits. The applicant said that her former partner’s home situation is settled and stable.
109. Secondly, and importantly, the applicant has indicated that she will live in Scotland and the applicant’s former partner’s family members live in Wales. While it is conceivable that his family members would travel to Scotland to harm her or would travel to Scotland and bump into her and harm her, the likelihood of harm is greatly diminished by the fact that they would be living six hours away from each other. It is highly unlikely therefore that they would come into contact with each other and that conflict would follow.
110. Thirdly, the applicant has said that the motivation of family members for harm inflicted upon her in the past was to break up the relationship between herself and her former partner. She and her former partner have not been living together since 2015, and the applicant has married someone else. She has said that she will not live in the house with her former partner and son as she does not want Social Services to be alerted to her return and cause trouble as her son is settled with his father. As she will not be in a relationship with her former partner, the former partner’s family members will not be motivated to harm her in the same way as they did when she was in a relationship and living with her former partner.
111. Fourthly, she has had no contact with the perpetrators while in Australia, although she mentioned a threat (presumably to her former partner) a few years ago.
112. Fifthly, although the former family members may have inflicted some violence on her, the Tribunal notes that the police made no arrests and in fact orders were taken out against the applicant. Although the applicant said that the police made no arrests because they did not have the addresses of the family members, as discussed at the Tribunal hearing, the Tribunal finds that this is unlikely as police are usually able to locate addresses fairly easily especially when the people they are looking for are well known to the accusers. The Tribunal finds that it was more likely that arrests were not made because there was ongoing conflict from both sides, as mentioned earlier, and because the police did not perceive ongoing threats. This consideration is given some weight, but not significant weight, given the lack of evidence from the police themselves.
113. For all these reasons considered cumulatively, the Tribunal is not satisfied that there is a real risk that the former family members would inflict any harm on the applicant. While there is a remote chance that the applicant will encounter former family members and they will harm her given the fact that they have some propensity for violence in the past, the chance of harm must be more than remote if it is to be ‘significant’ for the purposes of the legislation.[25] In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’.
[25] Chan v MIEA (1989) 169 CLR 379.
114. While it is acknowledged that if the applicant did encounter the family members, they may insult her, due to hostilities in the past, the Tribunal is not satisfied that insulting would reach the level of significant harm envisaged by the legislators. It would not amount to cruel or inhuman treatment or punishment. The structure of the definition of cruel or inhuman treatment or punishment suggests that the requirement of severity is linked to the pain or suffering, rather than the nature of the act or omission which causes it. Consistently with this, the Complementary Protection Guidelines state that the assessment is subjective, in that it depends on the characteristics of the victim (such as gender, age and state of health).[26] The Complementary Protection Guidelines also provide examples of treatment which are ‘very likely’ to constitute breaches of art 7, including rape, female genital mutilation, forced abortion and forced sterilisation and, in some cases, circumstances arising from a forced marriage and domestic violence.[27] These cases do suggest a severity which is greater than insults, even taking into account the applicant’s poor mental health, although, of course, insults are unpleasant. The Tribunal is not satisfied therefore that there is a real risk of the applicant suffering cruel or inhuman treatment or punishment through insults or psychological ill-treatment.
[26] Department of Home Affairs, ‘Complementary Protection Guidelines’, sections 3.4.5.2 and 3.4.5.3, as re-issued 29 February 2020.
[27] Department of Home Affairs, ‘Complementary Protection Guidelines’, sections 3.4.7.3 and 3.4.7.4, as re-issued 29 February 2020. See also FMN17 v MICMSMA (2020) 274 FCR 612.
115. The Tribunal is also not satisfied that insults or psychological ill-treatment, if any, would amount to degrading treatment or punishment as defined in s 5(1). It requires ‘extreme humiliation which is unreasonable’. Drawing upon international jurisprudence, the Complementary Protection Guidelines, which provide some guidance, state:
Treatment may be degrading if it ‘humiliates or debases an individual, showing a lack of respect for, or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’. In this regard, humiliation may be in either the eyes of others, or the eyes of the victim themselves. Treatment may also be said to be degrading if it grossly humiliates a person in front of others, or drives the person to act against their will or conscience…

116. The assessment of the minimum level of severity necessary to constitute ‘extreme humiliation’ will depend on all the circumstances of the case, including the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the gender, age, state of health or other status of the victim.[28] The Tribunal has already found above that there is not a real risk of significant harm generally as the family members live in Wales and she will live in Scotland and there has been no contact in recent years. The Tribunal is satisfied that any risk of harm is remote, but if it did occur, it would not be of significant duration and is likely to be spontaneous only. Although it would be upsetting for the applicant, the Tribunal is not satisfied that it would amount to degrading treatment or punishment as described above.
[28]Department of Home Affairs, ‘Complementary Protection Guidelines’, section 3.4.6.2, as re-issued 29 February 2020.
117. Furthermore, there are circumstances where there is taken not to be a real risk of significant harm. The Tribunal is satisfied that the applicant could obtain, from the authorities in Scotland, protection such that there would not be a real risk that the applicant would suffer significant harm (s.36(2B)(b) of the Act). The level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147. The Tribunal is satisfied that this is the case. Scotland has an independent police force and judiciary[29] and strong laws against domestic and family violence. One article refers to Scotland being the gold standard in relation to laws of coercive control.[30] The applicant would be able to take out an interdict order which forbids a person from doing something, visiting a place, or approaching a person. A power of arrest can be attached to an interdict order or interim interdict order, giving the police power to arrest a perpetrator should they breach the interdict. Interdict orders are granted under the Protection from Abuse (Scotland) Act 2001.[31] There is also the capacity to take out a non-harassment order, which is similar to an interdict but provides additional protection from harassment. Breach of the order is a criminal offence, under the Protection from Harassment Act 1997.[32] Scotland also has numerous community organisations to assist women and a 24-hour hotline.[33]
[29] United States Department of State, ‘Country Report on Human Rights Practices United Kingdom 2020’, 2021.
[30] ABC News, ‘Experts from Scotland who led push to criminalise coercive control give evidence to Australian Committee’, 5 December 2020
[31] Scottish Legal Aid Board (Web Page), ‘Interdicts, power of arrest and non-harassment orders’, Ibid.
[33] Scottish Women’s Aid website, ‘What is domestic abuse?’ | Scottish Women's Aid (womensaid.scot).
118. The Tribunal is satisfied on the basis of this information that the applicant could obtain, from the authorities in Scotland, protection such that there would not be a real risk that the applicant would suffer significant harm.
119. For all these reasons, the Tribunal is not satisfied that there is a real risk of significant harm from the applicant’s former partner’s family members.
Is there a real risk of significant harm from the perpetrators of sexual assault?
120. When asked by the Tribunal if she fears harm from the two perpetrators of sexual assault from her past, the applicant said that she feared harm from her former partner’s family members. This does suggest that she does not fear harm from the former perpetrators. Nonetheless, as this was a claim raised in her application, the Tribunal has considered whether there is a real risk of any of the kinds of significant harm set out in the legislation from these perpetrators. The Tribunal is not satisfied that there is a real risk, for the following reasons.
121. Firstly, the applicant lived in Scotland for a number of years after the incidents took place and there was no further contact from the perpetrators.
122. Secondly, she has not had any contact from the perpetrators while living in Australia.
123. Thirdly, she has not indicated particular concern about these perpetrators and has not provided evidence as to why they would contact her on return.
124. Fourthly, a significant amount of time has passed since the events such that there is unlikely to be any interest from the perpetrators in contacting the applicant.
125. The Tribunal is not satisfied therefore, considering these matters cumulatively, that there is a real risk, in the sense of a substantial or non-remote risk, of significant harm from these perpetrators.[34]
[34] Chan v MIEA (1989) 169 CLR 379.
126. As discussed earlier in relation to her fear of family members, the applicant could also avail herself of police protection and take out interdict or non-harassment orders if she had particular concerns. The Tribunal is satisfied, on the basis of the information about the police force discussed earlier, that the applicant could obtain, from the authorities in Scotland, protection such that there would not be a real risk that the applicant would suffer significant harm.
127. The Tribunal acknowledges that returning to Scotland where the acts took place would bring back some very difficult memories for her. In BVT20 v MICMSA [2020] FCAFC 222, the full Federal Court held that a real risk of significant harm requires an act or omission in the future and cannot be constituted by an act in the past, or the future consequences of an act in the past.
Is there a real risk of significant harm through homelessness?
128. The applicant claims that if she returns to Scotland she will be homeless as she cannot rely on her parents for financial support as they only have enough money ‘to get by’, and she cannot live with them or her sister as they have had a falling out.
129. The Tribunal is not satisfied that her family would not assist her or that they would not let her live with them, despite falling out in the past. She has told the Tribunal that she is close to her mother and they speak often. Both her mother and sister have close relationships with her son. The applicant also has a close relationship with her son and her former partner. They all live nearby. It is likely that notwithstanding issues in the past, they would assist her to ensure that she would not be homeless. There is also temporary and emergency accommodation offered by Scotland’s councils.[35] For example, the West Lothian Council's Homeless Assessment Team services the [named] areas and offers advice and help if an individual is homeless or think they could become homeless.[36] When this was discussed with the applicant at the Tribunal hearing, she said that she has never used the homeless services, but could do so in the future. She said that she would be better off in Australia with her husband. She said that her husband’s mother loves her and she has close friends in Australia and there is good medical care.
[35] Shelter Scotland (Web Page) ‘Temporary and emergency accommodation’, < West Lothian Housing Partnership (Web Page ‘Homelessness’), < While the Tribunal sympathises with the applicant’s preference to live in Australia, the Tribunal notes that preference for a country is not relevant to the question of whether she faces persecution in a home country. The Tribunal is not satisfied that there is a real risk of any of the categories of significant harm set out above, and further, homelessness would not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, as all these categories require intentional infliction of harm under the legislation. There would be no intention by any party to cause homelessness.
Is there a real risk of significant harm through worsening mental health?
131. The applicant claimed to the Tribunal that her mental health would worsen if she has to return to the UK, as she would have to face her traumatic past, and because she is more ‘comfortable’ with doctors in Australia.
132. The Tribunal is not satisfied that there would be a real risk of torture, cruel or inhuman treatment or punishment or degrading treatment of punishment due to worsening mental health. All these categories of significant harm require intentional infliction of harm under the legislation. There would be no intention by any party to create worsening mental health. In regard to arbitrary deprivation of life, the evidence does not establish that there would be any denial of access to services which would lead to loss of life. The requirement for actual subjective intent is not applicable to ‘arbitrary deprivation of life’ but there is an element of deliberateness imparted into the words ‘arbitrarily deprive’. ‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’[37] and in the Macquarie Dictionary includes ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.[38] ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’[39] and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.[40]Judicial comments have suggested that this kind of harm involves state matters such as extrajudicial killing, excessive use of force rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA 151 (Judge Riley, 4 February 2015). The Tribunal is not satisfied that the applicant would be arbitrarily deprived of life considering there would be no deliberate act to harm the applicant.
[37] English Oxford Living Dictionary, Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997).
[39] English Oxford Living Dictionary, Macquarie Dictionary (Macquarie Library, Revised 3^rd edition, 1997).
133. Indeed, the applicant would have access to mental health care in Scotland, which is regarded as having a strong medical system, with life expectancy at birth of 81[41], which compares favourably with the world average of 72.81.[42] International studies show good access to primary health care and that the UK performs well when compared with other countries globally.[43] British people also rate their health care highly.[44]Mental health services are free on the National Health Scheme.[45] NHS Inform is Scotland’s national health information service which allows individuals to make informed decisions about their health. The NHS Inform directory on mental health provides a number of self-help guides and tools for individuals to find help and services for their mental health. It supports individuals to access therapy and find the right therapist for them.[46]
[41] World Health Organisation (Web Page), WHO/Europe | United Kingdom of Great Britain and Northern Ireland.
[42] Macro Trends (Web Page), World Life Expectancy 1950-2021 | MacroTrends.
[43] The King’s Fund (Web Page), ‘How does the NHS compare internationally?’ | The King's Fund (kingsfund.org.uk).
[44] The King’s Fund (Web Page), ‘How does the NHS compare internationally?’ | The King's Fund (kingsfund.org.uk).
[45] NHS (Web Page), ‘How to access mental health services – NHS’ ( NHS Inform (Web Page),‘Mental Wellbeing’, < There are also charities dealing with mental health. The Scottish Association for Mental Health (SAMH) is Scotland’s national mental health charity that provides services for those struggling with their mental health. The information service allows individuals to chat about mental health or seek support through a phone line. They also facilitate self-referral to SAMH services and national organisations such as Breathing Space and Samaritans.[47]
[47] Scottish Association for Mental Health (Web Page), ‘About Us’ < Health services in Scotland are largely free with only a small independent private sector.[48] Mental health services are provided for by the NHS, local authorities, and private sector.[49] The independent sector runs in addition to the NHS and comprises 10 mental health hospitals and clinics. These services provide assessment, treatment and rehabilitation for people who require intensive psychiatric care or people with drug and alcohol problems.[50] The 2012 report states that ‘[s]ervices for people with mental health problems have changed dramatically over the last 30 years, with the closure of large, long-stay hospitals and a focus on shifting resources and case into the community’.[51] Mental health is noted as a national priority in the report. A Mental Health Tribunal was established in 2005 under the Mental Health (Care and Treatment) (Scotland) Act 2003 as a forum for ‘approving and reviewing compulsory measures for the detention, care and treatment of mentally disordered persons.’[52]The report details the provision of inpatient care and community mental health services. Inpatient care provides support for those experiencing acute psychiatric illness in general acute hospitals and psychiatric hospitals.[53] There is ‘a wide range of community mental health services’ in Scotland, including nurses, psychiatrists, psychologists, social workers, pharmacists and occupational therapists.[54]
[48] Ibid xvii.
[49] Ibid 103.
[50] Ibid 26.
[51] Ibid 101.
[52] Ibid 102.
[53] Ibid 103.
[54] Ibid.
136. When this information was discussed with the applicant at the Tribunal hearing, she said that she did not like the medical system in Scotland and doctors do not listen the way that they do in Australia. The Tribunal notes her preference, but this is not relevant to the question of whether there is a real risk of significant harm in the form of worsening mental health. As there would be no denial of medical services to the applicant and the standard of medical services is high, the Tribunal is not satisfied that there is a real risk of significant harm in the form of worsening mental health.
Is there a real risk of significant harm when the harm claimed is considered cumulatively?
137. The Revised Explanatory Memorandum to ss 91R(1)(b) and (2) expressly recognises this possibility where it is stated:
serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.[55]
[55] Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].

138. An assessment of refugee status requires the Tribunal to have regard to the totality of the circumstances. The cumulative effect of a number of ‘lesser’ harms, which of themselves do not constitute persecution, may lead to the conclusion that the combined effect of the harm is sufficiently serious to constitute persecution.[56]
[56] S1891 of 2003 v MIMIA [2005] FMCA 1069.
139. In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities.
140. The Tribunal notes that the applicant suffers from mental health issues, has never held a job for long, and has had difficulties with Social Services and the law. There is no doubt that she will be vulnerable in any environment. However, the Tribunal is not satisfied that there is a real risk of significant harm were she to be removed from Australia to the United Kingdom, even considering that she fears a number of parties as well as fears being homeless. She will be returning to Scotland where she has family members, and which has a strong social services system and police force.
141. The Tribunal is not satisfied therefore that there is a real risk of significant harm when her claims are considered cumulatively.
Findings on complementary protection
142. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the United Kingdom there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
143. 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).
144. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
145. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
146. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

ATTACHMENT B – LIST OF DOCUMENTS
The applicant provided the following documents to the Department:
•[General] Practice Patient Assessment dated 25 August 2015. The doctor diagnosed the applicant with anxiety and panic attacks and noted the applicant’s known ADHD and autism and her history of alcohol abuse and self-harm. The Assessment includes a Mental Health Treatment Plan recommending the applicant receive counselling from a psychiatrist and access cognitive behavioural therapy.
•[General] Practice Mental Health Treatment Plan Review dated 25 August 2015. States ‘progress on actions and tasks’ for the applicant’s ‘generalised anxiety/personality disorder’ is ‘ongoing CBT’.
•Statutory Declaration of the applicant dated 27 February 2017. Attaches a statement from the applicant’s ex-partner, [Mr C], to accompany the applicant’s spouse visa application in which he declares support for the applicant and her partner [Mr D]’s relationship.
•Statutory Declaration of [Mr C], the applicant’s partner, dated 27 February 2017. [Mr C]’s statement is in support of the applicant’s protection visa. States that [Mr C] “know[s] about her circumstances and situation back in Scotland. Therefore I know and see why my wife needs the protection visa.” Explains that [Mr C] witnesses over Skype the applicant’s difficulty with social services after the sexual attack and states that the applicant was made mentally unwell by the ‘horrific situation’ in Scotland.
•Supporting letter for protection visa by the applicant, undated. States the contact details of the social worker the applicant was ‘under’ when in Scotland, and a statement explaining what had happened and why the applicant left. In the statement she explains that after she gave birth to her son in [year], her former partner’s family gave the applicant a ‘hard time’. They made ‘fake allegations’ against the applicant’s parenting and a ‘health visitor’ called social services on her. The applicant received a letter to attend a meeting, so the applicant’s sister paid for her flight back to Scotland [in] July 2010. Five days later the applicant had another visitor from social services. The applicant was at risk of losing her son to temporary care. The applicant had to attend parenting classes at a family centre while her parents became ‘kinship carers’ for her son. Eventually, the applicant and her son’s father got a house to live in, but the applicant continued to experience ‘grief’ from the social worker who made the applicant feel ‘depressed’. The social worker told the applicant she ‘better get going to Australia and be with your man [a]nd arrange you’re parenting some other way’. The applicant states she ‘still live[s] in fear of them’, and that she couldn’t face it due to her mental illness and alcohol abuse. The applicant states since being in Australia she has ‘stabilised’ her mental illness and does ‘not feel safe whatsoever back in the United Kingdom’.
•Medical Certificate from [a doctor] at [a medical clinic] dated 8 February 2017. Certifies that the applicant consults the clinic for a medical condition and has seen a psychiatrist and psychologist for anxiety. States the applicant is not on medication as she wants to have a family.
•Birth certificate of the applicant dated [date].
•A photocopy of the applicant’s debit MasterCard.
•A photocopy of [Mr D]’s Victorian driver’s licence.
•A photocopy of [Mr D]’s debit Visa card.
•A photocopy of the applicant’s and [Mr D]’s Marriage Certificate, dated [February] 2015.
•Financial statement of [Mr D] dated 21 November [2016].
•[Bank] statement of [Mr D] from 2 November 2016 to 3 January 2017.
•[Bank] fee summary of [Mr D] from 3 November 2016 to 2 December 2016.
•Financial statement of [Mr D] dated 5 January [2017].
•[Bank] statement of the applicant from 1 July 2016 to 31 December 2016.
•[Bank] international money transfer dated 29 April 2013 from [Mr D] to the applicant.
•[Bank] international money transfer dated 1 May 2013 from [Mr D] to the applicant.
•[Bank] international money transfer dated 13 May 2013 from [Mr D] to the applicant.
•A list of [events] relevant to the applicant. States she ‘started working as Stay at Home Mummy’ in 2009, first met [Mr D] in 2013, and married [Mr D] in 2015.