2111912 (Refugee)

2111912 (Refugee) [2024] AATA 2958 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Leah Perkins (MARN: 1386236)
CASE NUMBER:  2111912
COUNTRY OF REFERENCE:                   Nicaragua
MEMBER:Adrienne Anderson
DATE:12 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 April 2024 at 11:59am
CATCHWORDS
REFUGEE – Protection Visa – Nicaragua – family violence victim – evidence to be direct and unembellished – harm feared amounting to serious harm – gender-based violence – membership of the particular social group – women – there are not effective protection measures available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nicaragua, applied for the visa on 27 June 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a protection visa.
The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative and a colleague assisting attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on an apparently genuine Nicaraguan passport, a copy of which is contained on the Departmental file. A copy of a Nicaraguan identity card was also provided. She has consistently stated that she is a citizen of Nicaragua and has been assessed as such by the Department. The Tribunal finds that the applicant is a Nicaraguan citizen and has assessed her claims against Nicaragua as the country of nationality and the receiving country.
Applicant’s background
The applicant is a [age]-year-old woman from [City 1], Nicaragua. She is of Seventh Day Adventist Christian faith. The applicant has three siblings, all of whom now reside in [Country 1] ([Country 1]). Her father is deceased, and her mother resides in [Town 1], Nicaragua.
The applicant has four children. Her eldest son, [Mr A], is currently in [Country 1], where he has sought asylum. Her two daughters, [reside] with the applicant’s mother in Nicaragua. Her youngest child, a son named [Mr B], resides with her in Australia.
The applicant grew up and began primary school in Nicaragua. When she was [age] years old, her family fled to [Country 1] because of civil war in Nicaragua. The applicant completed primary school and most of high school in [a city] before she returned to Nicaragua to complete high school when she was around [age] years old. The applicant ran her own [business].
The applicant arrived on a visitor visa in April 2016 and lodged an application for a protection visa in June 2016. After arriving in Australia, the applicant gave birth to her son [Mr B] in December 2018. [Mr B] is an Australian citizen, as evidenced by his Australian passport; for this reason, [Mr B] is not included in the visa application.
The Tribunal accepts the above matters to be true.
Applicant’s claims for protection
The applicant claims that her husband, [Mr C] , was emotionally, physically and sexually abusive towards her after they were married in June 2005. When she tried to separate from him in 2015, he perpetrated serious physical violence against her. She fears that if she returns to her home in [City 1], Nicaragua, [Mr C] will seek to seriously harm her because the relationship has broken down, because the applicant sought police help in relation to post-separation violence inflicted by [Mr C], and because she has had a baby with another man while in Australia.
The applicant claims that her husband, a member of the Juventud Sandinista (JS), has used his connections with this group to identify her brother [Mr D] and son [Mr A] as opposition supporters and participants in the large-scale protests in [Town 1] in 2018. As a result, her brother and son went into hiding before eventually fleeing to [Country 1].
The applicant lodged the application for the protection visa on 27 June 2016 and the delegate made a decision to refuse the visa on 25 August 2016. The delegate accepted that the applicant was in a relationship and separated from her husband in Nicaragua and that she was subjected to family violence during the relationship. The delegate accepted family violence to be a serious problem in Nicaragua, referring to country information recording high rates of femicide and physical violence experienced by women at the hands of intimate partners.
The delegate also accepted the contents of a medical report dated 12 October 2019, which stated that the applicant suffers from anxiety and depression, significant social phobia and trouble functioning due to poor sleep.
However, the delegate did not accept that the applicant was assaulted by [Mr C] following their separation in 2015. Nor did the delegate accept that [Mr C] has connections to the Juventud Sandinista (JS) or that he had sought to implicate her family in anti-Sandinista activity. The delegate therefore did not accept there to be a real chance of the applicant suffering serious harm on return to Nicaragua.
ASSESSMENT OF CLAIMS
The applicant has provided detailed evidence of the domestic violence she claims to have experienced from her ex-partner [Mr C]. In particular, the Tribunal has had regard to the following:
a.The written and oral evidence of the applicant to the Department and Tribunal including her statutory declarations dated 19 July 2017, 20 August 2019, and 17 March 2024.
b.Recorded police statement by the applicant to the [City 1] police;
c.Police summons dated 15 January and 18 January 2016 addressed to [Mr C] ;
d.Hospital discharge summary dated 17 December 2015, signed by Dr [E];
e.Hospital discharge summary dated 18 March 2016, signed by Dr [E];
f.Intervention Order (IVO) against the applicant’s former partner in Australia dated 12 June 2019;
g.Final IVO against the applicant’s former partner in Australia dated 7 July 2023, in place until 6 July 2026;
h.Medical certificate from Dr [F] [dated] 12 October 2019;
i.Letter from [a named] Casework Coordinator, dated 11 December 2019;
j.Letter from [a named person] of Foundation House dated 14 March 2024.
The Tribunal has also had regard to submissions of the applicant’s representatives to the Tribunal dated 18 March 2024 and those of her former representatives addressed to the delegate, dated 21 August 2019 and 6 December 2019.
In the assessment of credibility, Tribunal has had regard to its guidelines which emphasise the role of the Tribunal to consider all of the evidence available in order to make the correct or preferable decision and that evidence is assessed in its entirety, not just in isolated parts. The Tribunal must assess evidence by weighing up its probative value and relevance to an applicant’s claims.[1]
[1] Administrative Appeals Tribunal (AAT) Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015) [7].
The Tribunal notes the delegate’s assessment that the applicant provided false information in her visitor visa applications dated 31 December 2015 and 14 February 2016 in relation to her business location and activities in Nicaragua. This caused the delegate to consider that the applicant had provided false information in order to obtain the visitor visa and to draw an adverse inference in relation to the credibility of the applicant’s protection claims.
The applicant has acknowledged that she provided false information by using the names and and contact details of her relatives’ [businesses]. At the time of the applications, however, the applicant was helping with the family businesses as well as working on the wholesale side of her own business, which sold imported goods from her relatives’ businesses. In light of the entirety of the applicant’s evidence, the immediacy of her fears (her husband having made a serious attempt on her life immediately before the first application was made) and noting the peripheral nature of the applicant’s business details to her protection claims, the Tribunal has drawn no adverse inference as to the applicant’s credibility in the review proceeding.
The Tribunal considers the applicant to be a credible witness in relation to the violence she claims to have experienced from her former husband. The applicant was visibly emotional recounting her past experiences and the Tribunal found her evidence to be direct and unembellished. The applicant’s evidence was consistent with independent country information about the status and role of women in Nicaragua, machismo and social norms governing gender relations, and the dynamics of domestic and gender-based violence.
The Tribunal has also considered that the applicant’s evidence was largely internally consistent and to have been corroborated by documentary evidence in the form of police reports and hospital discharge documents. While the delegate identified an inconsistency between the applicant’s written and oral evidence at the departmental interview as to the timing of when the applicant left her husband, the Tribunal accepts the applicant’s account and medical evidence of the depression, post-traumatic stress and anxiety for which she is currently being treated and that she was experiencing at the time of the departmental interview, having recently been subjected to domestic violence in Australia as corroborated by the Australian-issued IVO. The Tribunal notes that the delegate also had concerns about the authenticity of the documents listed at b)-e) above. However, the Tribunal has benefitted from the applicant’s further evidence on these points addressing these concerns and in view of the applicant’s overall credibility the Tribunal accepts the authenticity and contents of the documents provided.
The Tribunal accepts the applicant’s account of her relationship with [Mr C] and the violence she has experienced, which can be summarised as follows:
a.The applicant met [Mr C] in 2004 when they ran businesses next door to each other. The applicant liked [Mr C] and thought he was a good man at first. She also felt pressure to marry him because she had previously been divorced and women in that position in Nicaragua are not treated well by men. Other people in society, including the applicant’s mother, look down on women who have been divorced.
b.They were married on 10 June 2005. The applicant had a son from a previous marriage, born in [year]. The applicant and [Mr C] adopted two daughters, born in [year] and [year].
c.From about 2006 [Mr C] became emotionally abusive, verbally abusing the applicant and isolating her from her friends and family. He accused the applicant of having affairs. He also became physically violent, beating the applicant if she refused his sexual demands. The violence escalated over time, occurred with frequency, and included serious incidents involving weapons or attempts on her life.
d.Around this time [Mr C] became more involved with the Juventud Sandinista. Armed members of the group would come to the applicant’s and engage in threatening behaviour, drinking excessively and shooting their guns in the air. [Mr C] often disappeared for days at a time with members of this group. [Mr C] knew that the applicant’s family was anti-Sandinista but the applicant could not speak about politics or against the JS with [Mr C].
e.The applicant felt pressure to remain married to [Mr C] because she had already been divorced, which carried a strong social stigma. This stigma is reflected in country information.[2] Women are expected to remain in violent relationships in Nicaragua, because a woman who is divorced or without a man has less value and is not respected.
[2] OECD Societal Institutions and Gender Index, ‘Discrimination in the Family’, Regional Report for Latin America and the Caribbean (2020).
f.Occasionally the applicant took the children and stayed at a hotel or her mother’s place when the abuse became too much but always returned out of fear that her children would be taken from her.
g.In late 2015, the applicant left her home with the children to stay at her mother’s house to trial a separation. While apart, the applicant realised she had to leave permanently because she and her children’s lives were at risk and she wanted her children’s lives to be better than her own had been.
h.In December 2015, [Mr C] arranged to meet the applicant to talk about their situation. They went for a drive around [City 1] during which [Mr C] became very angry and verbally abusive towards the applicant. On the highway, [Mr C] opened the door of the truck and pushed the applicant out. She hit her head on a tree by the highway and was knocked unconscious. The applicant was hospitalised for a week with head and back injuries. She returned to her mother’s home where she took another month to recover.
i.[Mr C] told everyone that the applicant had attempted suicide. This caused the applicant’s mother and other relatives to call the local priest and try to counsel the applicant to go back to him.
j.The applicant began preparations to leave Nicaragua. She knew she could not take her children with her as children are strictly required to have exit visas to leave Nicaragua.[3] She applied for a visitor visa in Australia in late December 2015, after the attempt on her life. The application was refused in February 2016.
k.The applicant applied for another Australian visitor visa in February 2016. She and her brother researched where she could travel and found there was nowhere else she could go. The applicant did not consider travelling to [Country 1], where she had relatives, because the borders are porous, and she feared that [Mr C] would be able to follow her there.
l.Because everyone thought that she had tried to commit suicide, the applicant reported [Mr C] to the police when she had recovered in January 2016. She felt angry that everyone was taking his side and did not know what he had done. The police told her she should speak to her local church and meet with [Mr C] to resolve their problems in their marriage. They issued two summons which requested [Mr C] to attend the police station to ‘settle a problem’. This referred to mediation which was required by law in domestic violence situations.
m.During this time, [Mr C] called the applicant at her mother’s house and made threats against her. He also turned up at her mother’s house and tried to see her. She refused to see him. In March 2016, [Mr C] turned up to the applicant’s mother’s house when her mother was not home and beat the applicant. She was again hospitalised with back injuries.
n.After she returned from hospital, on 24 March 2016, the applicant’s second application for an Australian visitor visa was granted. The applicant made arrangements to leave Nicaragua, including making her mother legal guardian to her daughters which gave her mother the right to make decisions about their care. The applicant left Nicaragua in April 2016 and travelled to Australia, transiting through [Country 1].
o.Since the applicant has arrived in Australia, [Mr C] has become aware that the applicant is in Australia. At first, he tried to call her many times, sometimes up to 50 times per day, from unknown numbers and from her daughters’ phones. Recently, the calls have stopped but the applicant receives messages from unknown Nicaraguan numbers. When she talks to her daughters, if [Mr C] is there, he yells abuse at the applicant in the background about her appearance, parenting and for going to the police about family violence.
p.The applicant began a relationship with an Australian permanent resident which ended when she became pregnant with her son [Mr B]. This relationship was abusive and an IVO is in place until 2026.
q.[Mr C] became aware of the birth of [Mr B] through their daughters. They have told the applicant he is angry with her for having a child and calls [Mr B] a ‘bastard’.
r.In 2018, there was a pro-democracy uprising which the government violently suppressed.[4] The applicant’s brother [Mr D] is known to have given slingshots to the pro-democracy side and he and the applicant’s son [Mr A] have fled to [Country 1] because of their support for the opposition.
[3] US Department of State (USDOS), 2022 Country Reports on Human Rights Practices: Nicaragua (20 March 2023).
[4] ‘During the next few months, the ensuing conflict left at least 355 persons dead, more than 2,000 injured, thousands forced into hiding, and hundreds illegally detained and tortured. The violence also spurred hundreds of thousands into exile in neighboring countries’: US Department of State, 2022 report
Future risk of harm on return

In assessing whether the applicant has a well-founded fear of persecution, the Tribunal must consider whether the applicant has a real chance of suffering serious harm in the reasonably foreseeable future. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[5]
[5] Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that if returned to Nicaragua, the applicant will return to her mother’s home in [Town 1], where her daughters reside and where the applicant would have family support. The Tribunal finds that the applicant’s husband [Mr C] will become aware of the applicant’s return and will be able to find her at her mother’s house because he has ongoing contact with the applicant’s daughters and lives within the same area.
For the reasons set out above, the Tribunal has accepted that the applicant was emotionally, sexually, and physically abused by [Mr C] during their marriage and co-habitation and that the applicant was assaulted on two occasions after she moved to her mother’s house in 2015 to avoid further harm to her and her children.
The Tribunal also accepts that the fact of [Mr B]’s birth has become known to [Mr C] through the applicant’s other children and that when the applicant has been speaking to her daughters that she has been verbally abused by [Mr C] for having [Mr B]. The Tribunal considers that the ongoing contact between the applicant and her daughters provides [Mr C] with access to the applicant and that his conduct establishes that he has an ongoing interest in the applicant that has not diminished with time or distance.
Given the above considerations, the Tribunal accepts there is a real chance that [Mr C] will seek to harm the applicant if she returns to [Town 1] now or in the reasonably foreseeable future.
The harm feared includes threats to her life, deprivation of liberty and significant physical harassment and ill-treatment amounting to serious harm under s 5J(5) of the Act.
Risk of harm across all areas of Nicaragua
As set out above, the Tribunal has accepted that the applicant has suffered physical, sexual and emotional abuse in the past at the hands of her husband [Mr C] and was subject to controlling tactics including isolation, intimidation, and threats to her life. Such harm between current and former intimate partners constitutes domestic/family violence.[6]
[6] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
Domestic violence is rooted in beliefs that men are entitled to use violence to enforce gender roles and to prevent or punish behaviour which does not conform to societal gender norms.[7] The Tribunal considers that information on these social norms and the context of gender inequality in the relevant society as well as the dynamics of family violence are relevant to assessments of both the forward-looking risk of suffering domestic and family violence in the future and the reasons for that violence. The Tribunal has considered sources on the dynamics of domestic violence as well as the applicant’s evidence and circumstances in assessing whether the real chance of persecution must relate to all areas of the receiving country.
[7] CEDAW Committee, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 7 [19].
Empirical research demonstrates that where perpetrators engage in multiple forms of abuse, and exhibit controlling behaviour, the risk of repeat and often very serious forms of violence is heightened.[8] [Mr C]’s past behaviour demonstrates a pattern of coercive control and a constellation of forms of abuse including economic, physical, sexual, verbal and emotional abuse. This includes an escalation of abuse in the attempt on her life when the applicant sought to leave him. The Tribunal therefore accepts that, even if the applicant were to move to another part of Nicaragua, [Mr C] will be motivated to seek to punish the applicant for the perceived offences of reporting him to the police and for having a child with another man while she remained married to him.
[8] ‘Factors affecting risk’, AIJA, National Domestic and Family Violence Bench Book (2021).
In this regard, the Tribunal notes that the Australian Institute of Judicial Administration (AIJA) has compiled risk factors for the escalation of domestic and family violence from academic literature, domestic violence death reviews and a range of risk assessment tools, one of which is having a child not fathered by the perpetrator.[9] AIJA notes a comparative study finding that women with a child or children fathered by someone other than the perpetrator were 30 per cent more like to experience lethal harm and 20 per cent more likely to experience at least one threatening or violence incident than women whose children were all fathered by the same perpetrator.[10]
[9] Ibid.
[10] Ibid, citing Emily Miner et al, ‘Risk of Death or Life-Threatening Injury for Women with Children Not Sired by the Abuser’ (2012) 23(1) Human Nature 89.
The applicant gave evidence that to avoid [Mr C] becoming aware of her presence if she returned to Nicaragua that she would have to be separated from her daughters and that [Mr C] would find out where she was if her daughters ever came to see her. The Tribunal considers that if the applicant were to move to another part of Nicaragua away from her mother’s home, the children she shares with [Mr C] remain a point of contact and means for him to locate her wherever she lived in Nicaragua. The Tribunal therefore considers that the applicant’s real chance of harm exists throughout Nicaragua.
Convention reason for the harm feared
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: s 5J(4)(c).
Country information indicates a high prevalence of gender-based violence committed with impunity in Nicaragua. According to the US Department of State, gender-based violence rates in Nicaragua remains high.[11] As of September 2022, there were 53 reported femicides committed by intimate partners, most of them committed after the victims suffered sexual violence.[12] At least 36 femicides have been reported as occurring between January and June 2023.[13] A survey conducted in 2012 found that one in four urban women had experienced physical or sexual violence, and almost half of urban women had experienced verbal or psychological violence from an intimate partner.[14] A further study in 2018 indicated that 23% of ever-married/partnered women aged 15-49 in Nicaragua had experienced intimate partner violence.[15]
[11] USDOS, 2022 Country Reports on Human Rights Practices: Nicaragua (20 March 2023).
[12] Ibid.
[13] Human Rights Watch, Human Rights Watch World Report 2024 (11 January 2024).
[14] Instituto Nacional de Información de Desarrollo (INIDE) and Ministerio de Salud (MINSA), Encuesta Nicaragüense de Demografía y Salud 2011/12, ENDESA 2011/12: Informe Preliminar (2013), cited in Christine Hughes (Oxfam), Legislative Wins, Broken Promises: Gaps in Implementation of Laws on Violence against Women and Girls (7 March 2017) 27.
[15] World Health Organisation, Region of the Americas Fact Sheet: Violence Against Women – Prevalence Estimates 2018 (2021).
High rates of gender-based violence are typically found where women are accorded less value and access to power than men.[16] Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women.[17]
[16] Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence against Women in Australia (2^nd ed, 2021) 36.
[17] Ibid.
As in other Latin American countries, traditional views of gender relations and the ideal of strong masculinity - machismo - underpin gender-based violence in Nicaragua. Machismo ‘has been associated with a sense of superiority over women, violence, womanizing, and a desire for control.’[18] The applicant gave evidence that [Mr C] did not permit her to complete her university degree because of his belief that women should be in the home, that she could not discuss political matters with [Mr C] or disagree with him, and that she had less value than [Mr C] and was expected by her mother and other members of society to remain in a violent relationship.
[18] Mariano Salazar & Ann Öhman, ‘Negotiating Masculinity, Violence, and Responsibility: A Situational Analysis of Young Nicaraguan Men’s Discourses on Intimate Partner and Sexual Violence’ (2015) 24(2) Journal of Aggression, Maltreatment & Trauma 131-149.
The Tribunal accepts that the violence feared by the applicant from her husband [Mr C] is gender-based and arises for the essential and significant reason of her membership of the particular social group ‘women’. This group is defined by a shared innate or immutable characteristic[19]– gender – which is not a shared fear of persecution.[20]
[19] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[20] Section 5L(d) of the Act.
Given that domestic and family violence is widely acknowledged to disproportionately affect women and girls[21] and to be a manifestation of discrimination against women,[22] the Tribunal is satisfied that the harm feared involves systematic and discriminatory conduct for the purposes of s 5J(4)(c).
[21] ‘Terminology’, AIJA, National Domestic and Family Violence Bench Book (2021).
[22] CEDAW Committee, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 1 [1].
Effective state protection
Pursuant to s 5J(2) of the Act, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant state, or a party or organisation (including an international organisation) that controls the relevant state or a substantial part of its territory, and that state, party or organisation is willing and able to offer such protection.
Under s 5LA(2), a state is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The broader political and security context is relevant to the availability of protection against domestic violence. Freedom House has summarised the repressive context as follows:
The 2006 election of Sandinista leader Daniel Ortega began a period of democratic deterioration marked by the consolidation of all branches of government under his party’s control, the limitation of fundamental freedoms, and unchecked corruption in government…Ortega’s regime has consolidated its power by engaging in surveillance, curtailing press freedoms, arresting political opponents, and sending opposing voices into exile.[23]
[23] Freedom House, Nicaragua: Freedom in the World 2024 (February 2024).
The government uses a range of laws to intimidate and quash opposition which has had an effect on the ability of NGOs to provide support to women subjected to gender-based violence. A 2020 foreign agents law, which requires anyone receiving funding from foreign sources to register with the Ministry of Interior, forms the basis for many cancellations of NGOs.[24] In recent years, the government has cancelled the registration of at least 147 NGOs working on women’s rights, blocking their work and access to funding. For example, the US Department of State reports that in September 2022, police raided the headquarters of the Matagalpa Women’s Collective, a non-profit organization that provided refuge for victims of domestic violence, and confiscated property; the group’s legal registration was cancelled in August 2021.[25] There are reportedly only three remaining shelters for women fleeing domestic violence.[26] The government has also removed the special police stations and courts serving women.[27]
[24] USDOS, 2022 Country Reports on Human Rights Practices: Nicaragua (20 March 2023).
[25] Ibid.
[26] Danae Vilchez, ‘Nicaraguan government outlaws feminist groups serving vulnerable people’ OpenDemocracy (1 June 2022) < See also Christine Hughes (Oxfam), Legislative Wins, Broken Promises: Gaps in Implementation of Laws on Violence against Women and Girls (7 March 2017) 28.
[27] Georgetown Institute for Women, Peace and Security, Peace Research Institute Oslo, Women, Peace and Security Index 2023/24 (October 2023).
Nicaragua’s current legislative provisions relating to violence against women, Ley 779, was introduced in 2012 with significant optimism from the women’s movement in Nicaragua. Ley 779 strengthened and improved Nicaragua’s framework on violence against women by criminalizing femicide, expanding the definition of violence to include psychological violence and destruction of property and eliminating informal mediation as a response to gender-based violence.[28] The law was met with significant backlash from conservatives and religious leaders in Nicaragua who saw the law as an attack on family values and traditional notions of gender and gender roles.[29]
[28] Pamela Neumann, ‘Gender-based violence and the patrimonial state in Nicaragua: The rise and fall of Ley 779’ (2018) 87 Cahiers des Amériques Latines 69-90.
[29] Ibid.
Subsequent amendments to the law have weakened its scope and ability to be enforced, particularly a 2013 amendment restoring the police’s ability to require perpetrators of violence against women to undergo family mediation rather than being subject to legal sanctions.[30] Research suggests a high rate of cases in which mediation occurs results in escalated violence; data collected by Nicaraguan feminist organisations indicates approximately 30% of cases in which mediation occurred ended in femicide.[31] The amendment has contributed to a climate of impunity for perpetrators of gender-based violence.
[30] Ibid.
[31] Ibid.
There are also well-documented challenges in implementing and enforcing Nicaragua’s framework relating to violence against women, including a lack of sufficient training for police personnel, failure to detain perpetrators in the absence of serious physical harm, and inconsistent application of the laws resulting in frequent failures to grant protection measures.[32]
[32] Christine Hughes (Oxfam), Legislative Wins, Broken Promises: Gaps in Implementation of Laws on Violence against Women and Girls (7 March 2017) 28.
The above information is consistent with the applicant’s experiences when she sought police protection. In these circumstances, the Tribunal is satisfied that effective state protection is not available to women who need protection from domestic and family violence in Nicaragua. The Tribunal also finds that the applicant would not be able to access protection in her particular circumstances given her husband’s membership of JS. The Tribunal accepts the applicant’s evidence – substantiated by independent country information – that grave crimes, including murder, committed by JS members have gone unpunished in recent years.[33]
[33] ‘Impunity persisted among police and parapolice forces in reported cases of torture, mistreatment, or other abuses’: USDOS, 2022 Country Reports on Human Rights Practices: Nicaragua (20 March 2023); ‘Judge Frees a Sympathizer Convicted of Murdering Opponent Jorge Rugama’ Confidencial (19 November 2020).
Right to enter and reside in a third country
The applicant gave evidence that she lived in [Country 1] for about ten years as a child. She, her mother and her two brothers were dependents on her father’s visa and application for permanent residence. The applicant does not know what visa her family was on as she was a child at the time. The applicant and her brother [Mr D] returned to Nicaragua because her mother was diagnosed with cancer, and it was difficult for her mother to care for all of the children.
The applicant became pregnant with her eldest child shortly afterwards and was removed from her father’s visa application in [Country 1] because she could no longer be considered his dependant. Her brother [Mr G] and sister [Ms H] remained in [Country 1] with the applicant’s parents. [Mr G] stayed because he was in college; [Ms H] stayed because she was a young child who could not be separated from the applicant’s mother. Her sister [Ms H] was born in [Country 1] and as such was a citizen. [Mr G] became a citizen because he stayed in [Country 1] and remained part of the father’s application. The applicant and her brother [Mr D], who both returned to Nicaragua, never became citizens of [Country 1]. Later, the applicant’s parents returned to Nicaragua because her father became ill and wished to be in Nicaragua for the end of his life.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside a third country, unless a well-founded fear of persecution exists in relation to that third country.
The Tribunal accepts the applicant’s evidence outlined above. The applicant gave consistent evidence in this regard and her account is consistent with immigration laws and procedures in [Country 1].[34] The applicant’s passport, on which she travelled to Australia from Nicaragua, contains evidence of a [visa] to [Country 1]. This is a visa that [Country 1] requires foreigners to obtain to transit through [Country 1].[35]
[34] [source deleted].
[35] [deleted].
Given the above, the Tribunal is satisfied that the applicant is not a citizen or permanent resident of [Country 1], and there is no evidence to suggest that the applicant has a presently existing right to enter and reside in [Country 1].[36] Nor is there any evidence to suggest that the applicant has a right to enter or reside in any other third country.
[36] MIMAC v SZRHU (2013) 215 FCR 35.
Given the above, the Tribunal finds that s 36(3) does not apply to the applicant.
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Adrienne Anderson
Member

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

[2024] AATA 2958

12 April 2024

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