2116659 (Refugee)
[2025] ARTA 1180
•12 March 2025
2116659 (REFUGEE) [2025] ARTA 1180 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Ivana Cugalj
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2116659
Tribunal:General Member S Dutra
Date:12 March 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 12 March 2025 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Ecuador – particular social group – women – victim of sexual assault – political opinion – anti-Correa Government opinions – journalist – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2021 (Delegate’s Decision) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 15 November 2021 the applicant sought review of that decision by this Tribunal[1] (‘Review Application’).
[1] That application was lodged with Administrative Appeals Tribunal (AAT) pursuant to the Migration Act 1958 and the Administrative Appeals Tribunal Act 1975 which were in effect at the time. On 14 October 2024 the AAT was replaced by the Administrative Review Tribunal (ART). All AAT reviews not finalised prior to 14 October 2024 were automatically transferred to the ART. Pursuant to Item 24(7), Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 No. 38, 2024, anything done in, or in relation to, the proceeding before 14 October 2024 that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time.
The applicant is a female national of Ecuador, born in [specified year]. She lodged the protection visa application on 25 May 2018 (PVA). The delegate refused to grant the visa, finding that the applicant is not a person in respect of whom Australia owes protection obligations.
The protection claims made and/or arising on the evidence before the Department are that the applicant fears harm in Ecuador for reason of her female gender; prior sexual assault, which was videoed and circulated online; her political profile as a vocal political opponent of the former Ecuadorian Government of Rafael Correa[2]; her work as a journalist; and for raising her protection claims in Australia. She maintained the same claims before the Tribunal, claiming she faces harm in Ecuador because she is a woman; she is a woman who has been sexually assaulted; she has been kidnapped; she has publicly expressed anti-Correa Government opinions; and she is a journalist.
[2] Rafael Correa was the President of Ecuador from 2007 until 24 May 2017. He did not contest the 2017 elections: Ecuador: In Brief', Congressional Research Service, 13 February 2018, 20190116123531, pg. 8 . Luisa González , reported in some sources as Correa’s hand-picked successor, lost the October 2023 Ecuadorian election to Daniel Noboa: The Guardian, 16 October 2023, Banana fortune heir Daniel Noboa wins Ecuador presidential election | Ecuador | The Guardian. In January 2024 Correa was reported to be living in self-imposed exile in Belgium as he faces a conviction in Ecuador, claiming it to be political persecution: El Pais, 25 Jan 2024, Rafael Correa, former president of Ecuador: ‘Everyone knows where the drugs come from. Why isn’t it controlled?’ | International | EL PAÍS English. In October 2024 the United States of America imposed a visa ban on Correa, his former Vice President and their spouses for corruption (Correa was convicted in absentia on corruption charges in Ecuador in 2020 and sentenced to 8 years in prison). He had been living in Belgium since 2017: US hits former Ecuador leaders with visa bans over corruption | AP News
There is no indication that the applicant was professionally represented before the Department. She was not professionally represented at the time of lodging the Review Application. By email dated 7 November 2024 the Tribunal was notified that a solicitor from the Immigration Advice and Rights Centre (IARC) had been appointed as the applicant’s representative and Authorised Recipient.
ISSUES FOR DETERMINATION
The issues in this case are whether the material facts on which the protection claims rely are credible and whether the applicant is a person in respect of whom Australia has protection obligations. This requires the Tribunal to determine whether the applicant meets the ‘refugee’ criterion and, if not, the ‘complementary protection’ grounds. The criteria for a Protection visa are attached.
Under section 5AAA of the Act, it is the responsibility of the non‑citizen who claims to be a person to whom Australia has protection obligations to specify all particulars of his or her claim to be such a person 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 non‑citizen’s claim; or to establish, or assist in establishing, the claim.
For the following reasons, I have concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
The applicant’s claims for Australia’s protection have been presented in a fragmented manner in many documents, emails and other correspondence sent by the applicant to the Department and the Tribunal, and in her oral evidence at hearing. Following appointment of her legal representative in November 2024, the applicant’s claims and evidence were consolidated in legal submissions dated 5 November 2024 (2024 Submissions), an updated statement from the Applicant dated 6 November 2024 (2024 Statement) and post-hearing submissions/documentation. During the hearing, however, the applicant said her protection claims rely on all the information and communications advanced since lodging her PVA. Accordingly, this decision has considered the multiple claims and evidence advanced in the applicant’s communications with the Department and Tribunal since the PVA was lodged in May 2018.
Claims Before the Department
In the PVA the applicant declares that she left Ecuador due to a ‘private incident’ in which her drink was spiked and she was sexually assaulted (Spiking Incident). She claims that the sexual assault was videoed and posted online (Sex Video) together with false accusations about her, leading to many years of sexual harassment, insults and abuse from strangers and colleagues. She believes people working for the then Ecuadorian Government of Rafael Correa (Correa) were responsible.
She was subsequently harassed sexually by her editor while working for [Newspaper 1] ([Newspaper 1] Harassment). She quit shortly after. She believes her mistreatment in Ecuador was because she did not want to support the Correa regime’s position on the media. She found out in Australia that, people she thought were friends, were involved in the campaign of harassment against her, and that they sent the Sexual Video to [University 1, in Australia] to continue that campaign in Australia.
She declared that she faces similar mistreatment on her return to Ecuador for being straightforward about her views on Correa and his position on the media, communication and censorship. She does not believe any socialist leaning country in South America would be safe for her, particularly given the detail she has shared in respect of her PVA.
In subsequent communications with the Department the applicant added:
a)the Spiking Incident occurred in the [specified period in] 2010;
b)she quit her job at [Newspaper 1] around 6 months after starting, following 2 sexual harassment incidents with her editor, [Mr A];
c)after that she experienced ongoing sexual harassment and mistreatment, including online and from strangers;
d)when she tried to stop the harassment, she was kidnapped and physically assaulted in around July or August 2013[3]. She believes the Ecuadorian Government sent someone to kidnap her, assault her and threaten her with a gun[4] (2013 Kidnapping);
e)those people later tried to murder her mother with a salt overdose[5] (Salt Overdose);
f)the desire of those people to undermine her professional and personal reputation motivated them to send the Sex Video to [University 1], where she was studying at the time;
g)she fears that she may act in a criminal way to defend herself in Ecuador and may end up in jail[6].
[3] email from the applicant to the Department dated 16 October 2021
[4] Email from the applicant to the department dated 16 October 2021 attaching a letter dated 8 June 2021
[5] Email from the applicant to the department dated 16 October 2021 attaching a letter dated 8 June 2021
[6] email from the applicant to the Department dated 16 October 2021
In an email to the Department dated 17 October 2021 the applicant also claims people have accused her of being a lesbian.
Delegate’s Decision: 5 November 2021
The applicant was not invited to participate in a Department interview before the Delegate’s Decision was made. However, on 24 September 2021 the Department invited the applicant to provide further information about the incidents outlined in the PVA. The Delegate’s Decision considered the information submitted by the applicant in response.
In finding that the applicant is not a person in respect of whom Australia has protection obligations, the delegate accepted that the applicant was a journalist in Ecuador; disagreed with the Correa Government; was sexually assaulted in May 2010; was victimised and harassed by her colleagues after that incident; and was harassed by pro-Correa peers whilst working at [Newspaper 1].
The delegate did not accept that a Sex Video with false information about the applicant was posted online; after the Spiking Incident the applicant was subjected to workplace harassment by the Correa’s government because she rejected the advances of her editor at [Newspaper 1]; she was persistently harassed and had her credibility undermined in subsequent workplaces because she did not support Correa; the applicant was sexually assaulted daily by men who had seen the Sex Video; that the Sex Video was sent to the [University 1] to promote violence against the applicant, or at all; that the Ecuadorian Government sent people to kidnap and assault her in 2013; that the Ecuadorian Government attempted to kill her mother by overdosing her with salt.
The delegate cited country information acknowledging the former Correa Government’s repressive approach to the media between 2007 and 2017; and the change in approach to the media under the subsequent Government of Lenin Moreno (Moreno) since May 2017. The delegate referred to amendments to communications laws and enhancements to press freedom in Ecuador; and to corruption inquiries throughout Moreno’s term in office, which resulted in judicial proceedings against several public officials, including Correa[7]. Correa was, at the time of the Delegate’s Decision, residing in Brussels, having been sentenced in Ecuador to 8 years imprisonment in absentia on corruption charges.
[7] Country Reports on Human Rights Practices for 2017 – Ecuador', US Department of State, 20 April 2018 , p18
Based on what was accepted of the applicant’s claimed circumstances, the delegate was not satisfied that the applicant faces a real chance of persecution in Ecuador in the reasonably foreseeable future; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ecuador, there is a real risk the applicant will suffer significant harm.
Claims Before the Tribunal
The applicant maintained the same claims before the Tribunal. The 2024 Submissions consolidated those claims, arguing that the applicant faces a real chance of serious and/or significant harm in Ecuador for reason of the following, including cumulatively: she is a woman; she is a woman who has been sexually assaulted; she has been kidnapped; she has publicly expressed anti-Correa Government opinions; and she is a journalist. Neither the 2024 Submissions nor the 2024 Statement mention the Sex Video. Instead, they focus on the applicant’s profile as a journalist who has publicly criticised the Correa Government, which, it is submitted, remains influential in Ecuador.
During the hearing the applicant said that, in addition to the above, she also relies on information she gave prior to appointment of her representative. That information adds that:
a) she left Ecuador in fear of Correa collaborators who did not want to allow her to leave[8];
b) the Salt Overdose incident occurred when her mother bought a [food item 1]. They tried to kill her mother. Her mother [sustained a disability] and was hospitalised as a result[9]. The applicant saw the person responsible. He was at [Hospital 1], where he went to see the effects of his actions[10];
c) the 2013 Kidnapping happened before the Salt Overdose incident. She was kidnapped and assaulted by [an occupation 1] after asking her online harassers to stop. The kidnapping occurred near [Guayaquil] while she was on her way to [University 2][11]. She submitted a document headed Identification of Accused Hearing Report[12] (Identification Report) as proof of this incident[13]. She fears the kidnappers may target her in revenge as one of them was jailed for the 2013 Kidnapping;
d) criminals in Ecuador kill people including public servants, without remorse. Ecuador is more dangerous now than when she left[14];
e) she has ‘spoken uncomfortable truths’ about the harassment and violence she faced in Ecuador and accused people in the Ecuadorian Government of persecution, harassment and violence. She fears retribution for speaking out about her persecution, particularly given the interaction between organised crime and Government and that she has accused the Government of supporting criminals[15];
f) someone will try to kill her like they did Fernando Villavicencio in Ecuador who was also a journalist. She cannot afford private security. She was probably one of the first people to accuse Correa's Government of [criminal and repressive activities].[16]
[8] Email from the applicant to the Tribunal dated 11 January 2022
[9] Email from the applicant to the Tribunal dated 10 January 2022
[10] Email from the applicant to the Tribunal dated 11 January 2022
[11] email from the applicant to the Tribunal dated dated 26 January 2021
[12] This was submitted in Spanish, together with an accredited NAATI translation
[13] A Spanish version and NAATI accredited English translation were submitted
[14] Email from the applicant dated 25 July 2023
[15] Emails from the applicant dated 25 July 2023 and 18 January 2024
[16] ibid
Hearing: 12 November 2024
In her completed Response to Hearing Invitation, the applicant did not identify any witnesses from whom she wishes the Tribunal to take oral evidence. This was also confirmed orally by her representative in a phone call with the Tribunal.
The applicant appeared before the Tribunal in person on 12 November 2024. She was assisted during the hearing by an interpreter in the Spanish and English languages. Her representative was also present. Early in the hearing the applicant confirmed that she understands the interpreter well and has no objection to communicating through the interpreter provided. Both the applicant and interpreter were asked to inform the Tribunal immediately should any communication difficulties arise. Throughout the hearing the applicant demonstrated her ability to communicate effectively through the interpreter provided. She also demonstrated a strong capacity to communicate in English, and often chose to respond to the Tribunal’s questions directly in English. She told the Tribunal, early in the hearing, that she feels well and able to discuss her circumstances and protection claims with the Tribunal.
During the hearing the Tribunal discussed with the applicant the documents submitted to date; and noted that country information suggests a high prevalence of fraudulent documentation from Ecuador[17]. I explained that this does not mean the Tribunal considers all documentation from Ecuador to be fraudulent. It does, however, mean that the Tribunal must be cautious about the weight, if any, it can place on them. I discussed that some of the documents submitted (identified during the hearing) are not accompanied by accredited English translations. Other documents which are claimed to be official records from Ecuador do not appear to bear official markings. The applicant’s representative requested additional time to provide post-hearing submissions and to address the concerns regarding documentation. The Tribunal allowed until the close of business on 26 November 2024 for further documents/submissions to be made. The responses are considered further below.
[17] This appears to have been acknowledged as a problem in countries including Ecuador. The Athens Network was promoted in November 2023 to address the issue: Athens Network: six Latin American countries and National Police sign cooperation agreement to detect illicit travel documents - FIIAPP, accessed 11 November 2024.
Documentary Evidence
As detailed above, the applicant’s claims and evidence were presented, prior to appointment of her representative in November 2024, in multiple, fragmented communications. Included with those communications were identity documents such as the applicant’s Ecuadorian passports; evidence of the applicant’s tertiary studies[18]; and documents supporting various aspects of her claims. Those documents are detailed and considered further under ‘Protection Claims’ below. After appointment of her representative the applicant’s claims and evidence were presented in the 2024 Submissions, 2024 Declaration, oral evidence given at hearing, Post-Hearing Submissions and supporting documentation referenced throughout this decision.
[18] Email from the applicant dated 18 February 2023
Post Hearing Submissions/Adverse Information/ Extension of Time Requests
During the hearing, the applicant’s representative sought additional time to provide post-hearing submissions to address issues raised during the hearing. The Tribunal allowed until 26 November 2024.
By letter dated 19 November 2024, the Tribunal wrote to the applicant, inviting her to comment, under s359A of the Act, on information the Tribunal considered would, subject to her comments, be the reason, or a part of the reason, for affirming the decision under review (359A Letter). The applicant’s written response was required by 3 December 2024. As the Tribunal’s decision could not be finalised prior to that response date, the Tribunal extended the date for providing post-hearing submissions to 3 December 2024.
By email dated 27 November 2024, the applicant’s representative sought an extension of 3 weeks to make post-hearing submission and to respond to the 359A Letter. The reasons cited were delays in the applicant’s parents obtaining hospital and police reports; the applicant waiting for [University 1] to provide a copy of a psychologist’s letter; and financial hardship impacting the ability to obtain accredited translations. The Tribunal extended time until 13 December 2024.
By email dated 11 December 2024 the applicant’s representative again sought to extend time for submission of the relevant material until 18 January 2025, citing time needed to obtain translations. By email dated 11 December 2024 the Tribunal requested further information as to why the translations were not requested earlier; and how the documents the applicant intends to submit are relevant to the adverse information detailed in the 359A Letter and to the review generally. The Tribunal’s correspondence stated that, unless notified otherwise, the deadline for submitting any documentation the applicant intends to rely on, including in response to the 359A Letter, remains 13 December 2024.
By email dated 12 December 2024 the applicant’s representative made post-hearing submissions dated 12 December 2024 which included a response to the 359A Letter (Post-Hearing Submissions); a ‘Counselling Support Letter’ from [University 1], dated 6 December 2024 ([University 1 Letter]); 3 articles written by the applicant and purportedly published on the applicant’s personal website, [Website 1][19]; and [social media] screenshots described as depicting the applicant’s opposition towards the former Correa Government.
[19] The articles are titled [details deleted].
The same email repeated the request to extend time until 18 January 2025 for provision of English translations of a letter from the applicant’s father; examples of the applicant’s published articles in Ecuador; a report regarding the legal complaint the applicant made to [Authority 1] regarding her kidnapping; and the applicant’s mother’s hospital report regarding the overdose incident. Given the upcoming holiday shutdown of services, the Tribunal allowed the extension of time. However, as of the date of this decision, no additional documentation has been submitted.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant claims to be a national of Ecuador and of no other country. She identifies no right to enter or reside in any other country either temporarily or permanently. Her identity and nationality are confirmed in the copies of her past and current Ecuadorian passports. The original version of her Ecuadorian passport, issued in [2019], was sighted by me during the hearing. The copy of her former passport indicates that it was issued in [2011] and expired in [2017]. I consider that evidence reliable. I find that the Applicant is a national of Ecuador and of no other country and that her identity is as claimed. Accordingly, Ecuador is the receiving country against which his protection claims have been assessed.
Personal Background
In her PVA, written submissions and communications with the Department and Tribunal, supporting documents and oral evidence at hearing, the applicant gave forthcoming, coherent, consistent and persuasive evidence regarding some aspects of her personal background, set out below.
I accept the applicant’s evidence that she was born in [year] in Guayaquil, Guayas, Ecuador. She has been an Ecuadorian citizen since birth, born to Ecuadorian citizen parents. She has never been a citizen or national of any other country. She speaks, reads and writes in French, Spanish and English. Her ethnicity is ‘Hispanic’. She was raised Catholic.
[Details deleted]. The family members listed in her PVA[20] are her parents and [specified relatives]. She has maintained contact with all those relatives since departing Ecuador in August 2014. She has never married and has no children.
[20] PVA answer 41
Regarding her movements in Ecuador, I accept that she always lived at her family home at the same address in Guiyaquil, with her parents, until coming to Australia in August 2014. She never lived elsewhere in Ecuador, except for short holidays. Noone other than herself and her parents lived in her family home. Her parents continue to live at the same address. She communicates with them 2 or 3 times a week from Australia, including via [social media]. Some of her relatives live in [Country 1] and some in Quito, Ecuador.
During the hearing I asked whether any of her family members in Ecuador have ever had problems relevant to her protection claims. She said her parents have not. Her male cousin was kidnapped for 4 or 5 days in around October 2023. She is unsure of the circumstances or motivations but believes it may have been motivated by money. He is from a wealthy family. He was ultimately released and now lives in [Country 2]. She is not aware of any other family or extended family members having problems in Ecuador. She did not, at this early stage of the hearing, mention her mother’s salt overdose. I accept the applicant’s cousin was abducted briefly in Ecuador in 2023. I find that this incident was motivated by money, and that it was not linked in any way to the applicant’s claimed profile in Ecuador.
Regarding the circumstances of the applicant’s parents’ generally, her evidence was that they run a [business] in Guayaquil. They have had this business since around 2020. Before COVID-19 they had a [shop] in Guayaquil for around 15 years. I accept this evidence. Relevant to her protection claims and claimed profile in Ecuador, her evidence did not identify her parents being approached or harmed at their home or businesses in Ecuador at any time.
Regarding the applicant’s international travels, she claims she holidayed in [specified countries] before coming to Australia in August 2014. According to her PVA and oral evidence, those travels occurred in 2011 and 2012[21]. She did not have any difficulty obtaining her passport in 2011, or while exiting or re-entering Ecuador, which she did in her true identity. I accept this evidence. With country information reporting that the Correa Government was in power in Ecuador from 2007 until 24 May 2017, the applicant’s ease of travel in and out of Ecuador is difficult to reconcile with her claim that, since 2011, Correa’s collaborators did not want to allow her to leave Ecuador[22].
[21] The PVA indicates that [in] 2011 she worked and holidayed in [Country 1]; [in] November 2012 she holidayed in [Country 1]; [in] May 2012 she holidayed in [Country 2]
[22] Email from the applicant to the Tribunal dated 11 January 2022
Regarding her travels since first entering Australia in August 2014, the applicant’s PVA indicates, that, between December 2015 and December 2016 she visited [specified countries]. I raised with the applicant that Department movement records indicate that she departed Australia in December 2015, returning in early February 2016, with records suggesting she may have returned to Ecuador. She said she did leave Australia on that occasion, but she did not go to Ecuador. She has never returned to Ecuador since leaving there in August 2014. After the hearing the Department confirmed that the reference in the Movement Record to Ecuador is only a reference to the passport travelled on, not the destination travelled to. I accept that the applicant has not returned to Ecuador since she departed in August 2014 and draw no adverse inferences from the Movement Records.
I asked about her education in Ecuador. She said her most recent studies were [subject 1] classes which she attended daily from 6-8pm [in specified years]. She walked to the classes, located a 30-minutes’ walk from her home. She was intending to undertake further study in [another country], however her university application was rejected in [year], so she stopped studying [subject 1]. Before that, she had completed a [Qualification 1] in [year] at [University 2], Ecuador. Her PVA indicates also that she undertook compulsory military service in Ecuador in [that year] and declares her role/duties as ‘journalist/communication/security’. This was undertaken in the first semester of [year].[23] Her oral evidence regarding her education in Ecuador was generally consistent with her 2024 Statement. I accept that it is as claimed.
[23] PVA answer 24
The applicant’s employment history in Ecuador is detailed in her 2024 Statement. The account she gave during the hearing was generally consistent with that account. She clarified that her work at the ‘[Agency 1]’ in Ecuador, referred to in paragraph 12 of that Statement, was not a government entity. She said the only Ecuadorian Government entity she worked for was [Newspaper 1]. I accept that evidence. I also accept that the applicant’s employment history in Ecuador is as set out in paragraphs 8 to 13 of her 2024 Statement. That employment history ends in September 2013. As to how the applicant spent her time in Ecuador until coming to Australia in August 2014, she said at hearing that she was working until April 2014 as a freelancer and copyrighter for an entity [named]. On the applicant’s evidence, I find that she had a largely continuous employment history in publishing, copyrighting, journalism and media in Ecuador from [year] to around April 2014.
I asked about the student visa on which she entered Australia in August 2014. She said she was able to meet the financial requirements for that visa through a scholarship from the Ecuadorian government, valued at around AUD$[amount]. She obtained the scholarship through a process of exams and interviews. She funded her studies in Australia from that scholarship. I accept that she was awarded a scholarship valued at AUD$[amount] by the Ecuadorian Government. This is difficult to reconcile with her claims that, for the 3 or 4 years prior to her entry to Australia as a student in August 2014, and while in Australia, she was subjected to a relentless campaign of harassment by agents of the same Government which sought to undermine her professional and personal reputation and her safety.
The applicant said that the student visa on which she entered Australia in 2014 ceased in mid-2016. She did not re-apply as she had no money. Since then, she was homeless for several years. She has only held Bridging visas since 2016. She emphasised repeatedly during the hearing that no one helped her apply for a PVA until 2018.
As to how she has spent her time in Australia, her evidence is that she partially completed a [Qualification 2] at [University 1] between 2014 and 2016. She did not complete the course because of mental health problems. She was angry about the sexual harassment she experienced in Ecuador. After 2016 she was homeless for some time. She did not study again until December 2018, when she commenced a [Qualification 3] at [a named] University. She is completing that course at [another] University and has 2 more subjects to complete. She decided to study [this subject] because she realised she does not want to do journalism. I asked what profession she would like to pursue in future in either in Ecuador or Australia if she could choose freely. She said she wants to work in [specified fields]. She also wants to publish a novel about politics in Australia, not about Ecuador.
Regarding her mental health, she said she received psychological assistance in Ecuador previously due to depression arising from the loss of family members to illness. In Australia she has also attended around 3 counselling sessions. Relevant to this, the Department file includes a letter from [Health Service 1], supporting the applicant’s request for permission to work. It is dated 21 August 2020 and refers to the applicant experiencing psychosocial disruptions since COVID-19 and distress regarding the wellbeing of her family. It says permission to work would benefit her mental health. After the hearing the applicant submitted the [University 1 Letter]. It states that the applicant attended 2 appointments at [Health Service 2] on 14 June 2016 and 22 August 2016; and had multiple phone and email contacts until 4 January 2018; ‘there were concerns about (applicant’s name) psychological state in the context of her reporting a sexual assault in 2009, the online circulation of a video of that assault, and a kidnapping and assault in 2014. As [Health Service 2] provides short term counselling support, (applicant’s name) was referred to a public mental health service for additional treatment.’ I accept that the applicant attended [Health Service 2] counselling and reported to [Health Service 2] the matters identified in the [University 1 Letter]. There is no evidence before me that she attended counselling subsequently.
I asked the applicant why she did not lodge her PVA until May 2018, almost 4 years after she first entered Australia, despite claiming to have fears of harm in Ecuador since before her first arrival in 2014. She repeated multiple times during the hearing that no one helped her apply for a PVA until 2018. After her student visa ceased in mid-2016, she could not find anyone to help her get a PVA. She told [University 1] about her problems in Ecuador, but no one there suggested that she applies for a PVA or told her where to get help to do that. They avoided helping her with legal issues but supported her in other ways. She tried to contact lawyers in December 2016, but not many were working at that time. She did not make attempts to contact lawyers again after December 2016. Ultimately, she was referred to a service named [Agency 2] in 2018, where she was assisted with the PVA. On how she found [Agency 2], she said she had come to Sydney, was homeless and was assisted by [another agency]. Based on the applicant’s education and work history, it is difficult to accept that she was unable to locate relevant information online or elsewhere to lodge a PVA herself prior to 2018.
I asked the applicant about her work in Australia. Relevant to this, the only work in Australia declared in her PVA is from November 2014, when she was writing for a blog and searching for a job[24]. Her oral evidence at the hearing was that she has never worked in Australia, except for 2 or 3 weeks when she worked in a [business]. Other than that, she has not worked at all in Australia, despite wanting to. I asked whether she has ever had her own business. She said that, in Ecuador she had a business as a copyrighter and freelancer.
[24] PVA answer 41
I asked if she has ever had her own business in Australia. She said she has not, adding ‘if I do, I would go to jail’. I discussed with the applicant that I have located a [social media] profile which bears her first and last name, her photo, and a work and educational background in Ecuador which generally reflects that detailed in her protection claims. It refers to her as the CEO of [Website 1] currently, and since September 2014; and describes her as a ‘[storyteller]’ with a ‘steadfast commitment to [creating] compelling narratives and strategic [communications] that resonate with diverse [groups]’. I explained that this evidence is difficult to reconcile with her oral evidence that she has only worked for 2 or 3 weeks in Australia and has never had her own business here. She responded that [Website 1] was her business plan when she was studying her [Qualification 2] between 2014 and 2016. She forgot to delete it. I explained that her willingness to maintain a publicly accessible [social media] profile in her full name, with her photo, is also difficult to reconcile with her claims that she believes she has been targeted in Ecuador and Australia by Correa supporters who are determined to undermine her professional and personal reputation. She responded that she thought about changing her profile name but did not think she should have to just because she is a victim of harassment.
In a 359A Letter dated 19 November 2024, the Tribunal invited the applicant to comment on information which the Tribunal considered would, subject to her comments, be the reason, or a part of the reason, for affirming the decision under review. It explained that the information comprises a publicly accessible [social media] profile containing her full name and photo with work and education details similar to those she has given throughout the protection visa and review process; that profile was located by the Tribunal though an open search for her name; the content of that profile indicates that she has worked extensively since arriving in Australia in 2014; and that she has had her own business for more than 10 years, commencing in 2014. Screen shots from that profile were attached.
The 359A Letter explained that the above information is relevant to the review as it appears to differ from her sworn oral evidence given during the hearing that she has only ever worked in Australia for around 2 to 3 weeks; she never had her own business in Australia. The letter explained that her willingness to maintain a publicly accessible [social media] profile (which clearly includes updates to 2024) which can be located through an open search of her name and which invites viewers to send her messages is also relevant to her oral evidence at hearing that she has not heard directly from people she believes have been harassing her in Ecuador and Australia. The 359A Letter continued that their lack of contact with her, despite the ease with which her [social media] profile allows contact, may be seen to reflect a lack of interest by them in pursuing or harming her in anyway.
The 359A Letter explained that, if the Tribunal relies on this information, in the context of all the evidence advanced, it may question the reliability of her claims and evidence that she faces a real chance of serious and/or significant harm in Ecuador in the reasonably foreseeable future.
In the written response from her representative, dated 12 December 2024, the applicant maintained that she only worked for 2 or 3 weeks in Australia; the [social media] reference to [Website 1] operating since 2014 reflected her intentions while studying her [Qualification 2] course between 2014 and 2016 to set up her own company; she never had a client or engaged in work for [Website 1]. She maintained her [social media] profile to demonstrate that she was prepared and possessed the necessary skills to work. She created that profile ‘well before arriving in Australia’. As to the concern regarding the lack of contact from her claimed pursuers in Ecuador, she agreed that there has been no contact from them. She states that ‘perpetrators do not always inform their victim of their intentions, nor do they provide warnings about their actions’; and because she is not in Ecuador, she is not considered a threat from Australia; this is why her harassers have not tried to contact her in Australia. This is difficult to reconcile with her claim that her harassers pursued her in Australia by sending the Sex Video to [University 1] to continue their harassment campaign and undermine her professionally and personally. On the evidence overall, I have concerns regarding the reliability and truth of the applicant’s claims that there are people in Ecuador who have continued to pursue her in Australia, and/or who have ever had an intention to harm her, including when she was in Ecuador, now and in the reasonably foreseeable future. I also have doubts about the truth of her sworn oral evidence that she has only worked for 2 or 3 weeks in Australia.
Protection Claims
During the hearing the applicant explained that she was able to read and understand well the PVA, including the completed version she submitted. I asked her to explain, in her own words, why she fears returning to Ecuador now and in the reasonably foreseeable future and who she fears harm from. She said she believes any Correa supporters who know her may harm her because she has already been harmed and she has expressed views critical of Correa’s Government.
Past Harm: Spiking Incident and Sexual Assault, May 2010
In the PVA the applicant declares that she left Ecuador due to the Spiking Incident during which she was sexually assaulted; the sexual assault was videoed and the Sex Video posted online, together with false accusations about her, leading to many years of sexual harassment, insults and abuse from strangers and colleagues; she believes agents of Correa were responsible. In subsequent communications with the Department, she added that the Spiking Incident occurred in the [specified period in] 2010 at a bar named [name], during a work event when she was working for [Employer 1][25]; she recalls calling her mother for help when [Mr B] sexually assaulted her while she was unconscious; that her colleague, [Ms B] ([Mr B’s] wife) recorded her and posted the video of her sexual assault online; in the video the applicant says her name. She says that she has never seen the video[26].
[25] Email from the applicant to the Department, dated 16 October 2021
[26] ibid
I asked the applicant when she first became afraid for her personal safety in Ecuador. She said it was in 2011, when she noticed strange men following her. As to what made them seem strange, she said that, in a South American context, they had facial distinctions which made them look criminal, like they wanted to steal something. They scanned people when they looked at them and were present everywhere she went. I asked whether anything had happened to her before 2011 which made her feel targeted. She said she started noticing these men around 2 months after she finished working at [Newspaper 1] in around February 2011. She did not notice them before around April or May 2011. As to whether they did anything other than have the appearance of criminality, she said some of them tried to touch her inappropriately and followed her on the streets. This happened around 50 times between 2011 and August 2014. She often asked her father to walk with her. Noone touched her when he was with her. She asked her female friends and her mother if they had similar experiences. They said they did not. Despite these claimed approaches, her oral evidence was that she continued to live in her family home without any adverse encounters there; she voluntarily walked 30 minutes from home daily to get to and from her [subject 1] classes between 6 and 8pm between [specified years]; she returned to Ecuador after travelling abroad in 2011 and 2012; she did not finally depart Ecuador until August 2014.
Relevant to her claims regarding the Spiking Incident in May 2010, I asked whether she experienced any problems at all in Ecuador before commencing work at [Newspaper 1] in [2010]. She said she was sexually assaulted after her food or beverage was spiked at a work function in around March 2010, when she worked for [Employer 2]. She does not recall much about that incident because she believes she was drugged. She recalls being at a work function with her colleague, [Ms B]; she started to feel unwell; [Ms B’s] husband, [Mr B], was meant to drive her home; she was in the car with [Ms B] and [Mr B]; [Ms B] was being overtly sexual toward her husband, which seemed out of character and makes the applicant think [Ms B] was also drugged; [Mr B] did not drive her home; she believes he took her to a motel where she was sexually assaulted while unconscious. I asked about her first recollections when she regained consciousness. She said she woke up at her home with no memory of what happened, she had a shower and went to work at [Employer 2]. She saw [Ms B] there. [Ms B] told her she also does not recall what happened, but she recalled some things. The applicant recalled a body on her, so she went to a gynaecologist to see if she had been raped. The gynaecologist confirmed that she had not been raped. The applicant felt confused. She went to a psychologist at her workplace[27] who told her that if she goes to the police, it will be recorded that she was under the influence of drugs. For that reason, she did not go to the police.
[27] According to the 2024 Statement, the applicant was seeing the psychologist for an unrelated family matter
I asked whether anyone at [Employer 2] mentioned the Spiking Incident to her. She said they did not. Noone at [Employer 2] ever said anything about it. She stayed at [Employer 2] for around 6 months after the Spiking Incident. She left that job because the business was restructuring. She and other employees, including [Ms B], had their employment terminated because of the restructure. [Ms B’s] husband, [Mr B], never worked with them. Around a year later, she voluntarily returned to work at [Employer 2] on their request. She never had any problems at [Employer 2] after the Spiking Incident and generally enjoyed that workplace and her colleagues there. After the Spiking Incident, the only colleague she felt uncomfortable with was [Ms B]. She has not had contact with [Ms B] or [Mr B] since around June 2010.
The applicant’s evidence regarding the Spiking Incident and the sexual assault which followed is, on the applicant’s best evidence, based on vague recollections of events the applicant says took place while she was unconscious. Her account is unsupported by reliable or independent evidence and includes that, on consultation with a gynaecologist, it was confirmed that the applicant was not raped. While the [University 1 Letter] notes the applicant referring to these incidents in the context of receiving mental health assistance in Australia, the [University 1 Letter] is based on 2 consultations and appears to rely entirely on the applicant’s self-reporting, with no demonstrated exploration of the reality of the claims made. Having the benefit of the extensive evidence before me, including the applicant’s immediate responses to questions put to her at hearing, I accept that she became unwell during a work function while employed at [Employer 2] in around May 2010 and that she is uncertain about the events that took place that night. I have doubts about the truth of her claims that she was drugged. On the applicant’s own testimony, I find that she was not raped. There is before me no reliable evidence to support the applicant’s claimed belief that she was the victim of a sexual assault of any nature that night. I have doubts about the truth of the applicant’s claim that she was sexually assaulted that night and/or that she truly believes that to be the case.
Online Publication of Sex Video
Related to the above, prior to the 2024 Submission and 2024 Statement, the applicant’s protection claims relied heavily on her claimed belief that a video depicting her sexual assault in May 2010 had been published online together with false information about her behaviour; that Sex Video was taken and uploaded by [Ms B] and another person; the posting of that video resulted in daily sexual harassment of the applicant which continued in Australia when the video was sent to [University 1] by Correa’s supporters in a campaign intended to undermine her personally and professionally. At all times, her evidence was that she has never seen the video, she cannot recall a video being taken, she does not know who sent it to [University 1]. While claiming that she raised the issue with [University 1], she told the Tribunal that she did this verbally and that she has no documentary evidence of raising these matters with [University 1]. She claimed to have approached Australian police regarding this, but again submitted no independent evidence to support that claim. After the hearing she submitted the [University 1 Letter] which referred to her accessing [Health Service 2] assistance between 2016 and 2018, being the period after she ceased her studies at [University 1] and when she claims to have been homeless in Australia. That letter refers to her self-reporting to [Health Service 2] a sexual assault occurring in 2009, and the online circulation of a video of that assault.
When discussing the Spiking Incident and sexual assault at hearing, the applicant did not refer to the Sex Video being made or uploaded online. Later in the hearing I asked why she has not mentioned this during the hearing, in her 2024 Submissions or in her 2024 Statement. She responded that the Delegate’s Decision rejected that part of her claim. I explained that it is curious to me that she seems to have abandoned those aspects of her claims in her recent evidence to the Tribunal if she believes that those events occurred, particularly given their centrality to her claims before the Department.
I asked what made her think that the Sex Video had been sent to [University 1]. She said a male student approached her at [University 1] library and said there is a sex video of her online. She had never met the student before and does not know his name. He did not say anything else. As to whether she queried what he was referring to, she said she did, but he said nothing else and just left. Despite approaching the person in charge of international students at [University 1] and the police in Melbourne, none of them, nor the applicant, have ever located a sex video of the applicant online.
There is no reliable evidence before me that a sex video was ever taken of the applicant, ever uploaded online, or ever sent to [University 1]. I have doubts that any such video was taken or uploaded online, and/or that the applicant has ever had any reliable basis for believing this to be the case.
[Newspaper 1] Harassment: 2010-2011
The applicant claims to have experienced a range of problems while working at [Newspaper 1] between [2010] and February 2011. She commenced work there after leaving [Employer 2]. As set out in the 2024 Submissions, [Newspaper 1] was a privately owned newspaper in Ecuador which was seized by the [Correa Government]. [Detail deleted][28].
[28] [Source deleted.]
In her PVA the applicant claims she was sexually harassed by her editor, [Mr A], while working for [Newspaper 1]. She quit shortly after. In subsequent communications with the Department, she claims she quit her job at [Newspaper 1] after around 6 months, following 2 sexual harassment incidents with [Mr A]. In her 2024 Statement she adds that she quit [Newspaper 1 variant] because of the pro-Correa slant of the paper; through her investigative journalism work at [Newspaper 1] she gained insights into the unethical ways the Correa Government was supressing the media and into Government corruption; she felt compelled to speak out, despite knowing the risks[29].
[29] 2024 Statement, paragraph 17 and 19
During the hearing the applicant said she was aware, at the time she went to work for [Newspaper 1 variant] in 2010, that it was a pro-Correa publication. She went to work there anyway because she did not have a job and needed money. She did not think the publication would be pushing a public relations agenda for the Government and against the Mayor of her local area. During the hearing she said she found it a difficult environment to work in. Her role there was as a reporter. Generally, she reported on subjects like [specified subjects] and similar matters. Her 2024 Statement also refers to her writing on [specific issues]. She recalled at hearing that she wrote an article about [occupation 1s] who wanted to pay less tax. The article was published by [Newspaper 1]. Her editor went with her to the interview to make sure the content was okay for publication. Relevant to the claim in her 2024 Statement that she left that employment in part because she did not want to promote a wrong perception about her municipality and because she felt compelled to speak out despite the known risks[30], her oral evidence at hearing was that she does not have any particular political point of view and has never tried to ‘establish a war’ against anyone. She only really spoke to her co-workers about Correa’s attempts to control journalists. I asked whether she is saying she never published anything which she thought would be considered critical of the Correa Government. She said this is correct. She just wanted to report the truth about transport and infrastructure and other matters relevant to her city. On the evidence before me, I have doubts that the applicant ever expressed views critical of Correa while at [Newspaper 1], which she knew to be a pro-Correa publication at the time.
[30] Ibid, paragraph 24
I asked the applicant to explain the specific problems she experienced at [Newspaper 1]. She said it had a workplace culture in which it was ‘common’ for male staff to harass female staff sexually, commenting on their appearance and clothing. There was one female TV presenter working there who wore sexy clothing to work. Other employees would stop and watch her walk through the office. The applicant found it ‘too much’. As to any problems she experienced personally while at [Newspaper 1], she said that, when she first started working there she had a female Editor in Chief. That woman was harassed and left one month after the applicant commenced work there. From then on, the applicant worked under [Mr A]. [Mr A] often said her clothes looked ‘posh’. This annoyed her as she wore ordinary clothing, not expensive clothing. One time, out of nowhere, [Mr A] asked her, via a mobile phone message, if she likes threesomes. This shocked her. He later apologised and said he was joking. She told him she was angry and disgusted by his message. Later [Mr A] told her her he wants a relationship with her. She rejected this suggestion and noticed that he was angry. She felt uncomfortable knowing that he wanted her to be his girlfriend and left [Newspaper 1] soon after, in February 2011. She has not had any contact with [Mr A] since February 2011. I accept that [Mr A] sent the applicant a sexual message on one occasion and that he expressed interest in pursuing a romantic relationship with the applicant on another occasion while she was employed at [Newspaper 1 variant]. I accept that she left that employment in February 2011, at least in part, because she felt uncomfortable in [Mr A’s] presence; and that she has had no contact with him since then.
Relevant to the claim in her 2024 Statement that she made online posts about [Mr A] from Australia and that she fears retaliatory harm as a result[31], I asked when and why she did that given she has had no contact with him since February 2011. She said she was angry about the harassment she experienced. She made the comments on [social media] around 2016 or 2017, after ceasing her studies at [University 1] and while homeless. She still holds the same [social media] account. I asked if she could recall the comments she made. She responded that she said he was a sexual harasser. She did not get any responses on [social media] except from a friend in [Country 3] who said she shouldn’t make such comments. In Post-Hearing Submissions she provided documents described as ‘[social media] screenshots of (applicant’s name) posts regarding her anti-Correa Government [position].’ The posts depicted are made on a [social media] account held in the applicant’s first and last name. They are dated between 2016 and 2021 and refer generally and briefly to her hating Correa and his ‘sexual harassers and killers’. Each post is ‘liked’ or responded to by no more than 2 people, often including the applicant. There is no specific mention in any of the posts to [Mr A]. While I accept that the applicant made the [social media] posts depicted in the screenshots submitted, I find that they are brief, they do not mention [Mr A], and they have had very limited circulation. I do not accept that they give they applicant a profile in Ecuador as a vocal critic of the Correa Government or that they give rise to a real chance of retaliatory harm from [Mr A] or anyone else.
Harassment Since Leaving [Newspaper 1 variant]: Post-February 2011
[31] Ibid, paragraph 54
The applicant claims that, around 3 months after leaving [Newspaper 1 variant] she noticed strange men following her who she believes were Correa’s secret police. She thinks they were following her because they knew about her political opinion[32]. In other documents submitted to the Department and Tribunal, she claims that Correa’s supporters and [Mr A] commenced a campaign of harassment against her since she left [Newspaper 1 variant] in February 2011, trying to damage her reputation and employment prospects.
[32] 2024 Statement, paragraphs 25-27
Relevant to these claims, I asked the applicant whether she had any trouble getting employment after leaving [Newspaper 1 variant]. She said she did not. I asked whether she ever experienced difficulties getting work in her chosen field in Ecuador. She said, ‘not really’, although people started getting nervous about Correa’s new laws. She also said that she was awarded a AUD$[amount] scholarship to study in Australia by the Correa Government in [year]. These factors together make it difficult to accept that she had or believes she had a profile as an opponent of the Correa Government before leaving for Australia in August 2014.
As detailed earlier in this decision, her oral evidence at hearing was that she believed she was being followed by secret police because she noticed strange men with an appearance of criminality following her since around April or May 2011. At best, her claimed belief that these people were secret police is based on speculation and is unsupported by reliable evidence. On the evidence before me, I have doubts about the truth of the applicant’s claim that she was ever followed by or of interest to the Correa Government or secret police.
Computer Hacking Claims
Compounding the above concerns are the applicant’s claims that her computer was hacked by Correa agents and an unpublished article she wrote on [subject] was found[33]. At hearing I asked whether she wrote anything about [that subject] which was considered sensitive by the Correa Government. She said there was no such article. I explained that her 2024 Statement says the Correa Government knew about her political opinion and sent secret police to follow her at a time when she was writing a then unpublished article on [this subject], which was stored on her computer; and that she believes her computer was hacked by the secret police[34]. I asked if she could tell me about that. She said she cannot recall [such an article] on her computer.
[33] 2024 Statement, paragraph 27
[34] 2024 Statement, paragraph 27
Regarding her allegations of hacking generally, she said during the hearing she had an online fight with a girl named [Ms C] in 2013. She cannot get copies of the online argument as they are no longer online friends. She said that [Ms C] had helped with some tax matters using the applicant’s computer. She believes [Ms C] hacked her computer then. She did not know why [Ms C] would do that. She said [Ms C] worked for the Government, suggesting that could be why. Her 2024 Statement refers to [Ms C] as a former friend who worked for an internal revenue agency in Ecuador. [Ms C] and her friends made jokes about the applicant, calling her stupid. [Ms C] wanted a government job and threatened the applicant ‘in an aggressive tone saying that something bad would happen to me’[35].
[35] Ibid, paragraph 30
She added at hearing that another former friend, [Ms D], also threatened her on [social media]. [Ms D] also worked for the Government. She also had no supporting evidence of that threat. Her 2024 Statement says that, like [Ms C], [Ms D] also threatened that ‘something bad would happen to me’; she ‘was unable to take a screenshot at the time as I was in shock, and fearful of the threat’[36]. It is not apparent why she could not take a screenshot subsequently. She said at hearing that both [Ms C] and [Ms D] supported Correa.
[36] Ibid, paragraph 29
I asked if there was any adverse consequence to the applicant after her computer was hacked. She said she had to buy a new computer. Nothing else happened. Her evidence did not support her written claim that secret police working for Correa hacked her work computer in connection with an unpublished [subject] article she had written, or otherwise. Nor does her evidence suggest in any way that [Ms C] or [Ms D] were agents of Correa who had specifically targeted the applicant. I do not accept that the applicant’s computer was hacked by agents of the Correa Government or that the applicant was threatened on [social media] or otherwise by [Ms D] or [Ms C].
Harassment in [Subject 1] Course: [specified years]
I explored with the applicant the claims in her 2024 Statement that she attending [subject 1] classes for over 3 months in Ecuador; people in her class were verbally aggressive towards her and called her a whore; she believes those people were connected to the secret police because they followed her on the streets and insulted her; she fears her harassers would recognise her if she returns to Ecuador and would harass and harm her.[37]
[37] 2024 Statement, paragraph 28
During the hearing she said she took [subject 1] classes for 2 years [in specified years]. She walked 30 minutes from home to attend those classes nightly from around 6 to 8pm. I asked whether she experienced any problems with the people in her [subject 1] class. She said there was one girl in her class who called her a whore. She is not sure why this girl was aggressive to her, but assumes it was a continuation of the Government’s harassment. She does not know anything more about the girl. The applicant did not have any problems with anyone else in her [subject 1] class and had no reliable basis for believing the girl was linked to the secret police or Correa Government.
I accept that the applicant was insulted by one student in her [subject 1] class. However, I find the claim that this girl was connected to the Correa Government or secret police to be entirely speculative and do not accept that claim. Nor do I accept that the applicant truly believes this girl was linked in any way to the Correa Government.
Return to Ecuador After Overseas Travel: 2011-2012
I asked the applicant why, if she believed she was being followed and harassed by secret police and sexually assaulted on a daily basis in connection with her political profile as claimed, she returned to Ecuador after her travels abroad in 2011 and 2012. She responded that the 2013 Kidnapping had not occurred by then; after the 2013 kidnapping she felt her risks were higher; the risks continued to increase for her after that.
2013 Kidnapping
In her 2024 Statement the applicant claims that, in around July or August 2013, she was kidnapped. She had taken a taxi outside her home and was driven to a dark alleyway. Three men entered the car. They sexually assaulted her, hit her and stole her wallet and mobile phone. She believes the kidnapping was planned by the secret police.[38] During the hearing she clarified that, while all of her body was impacted by the attack, it was not sexual in nature; she has no specific information linking this incident to the Correa Government or secret police.
[38] Ibid, paragraph 31
The applicant said at hearing that she was only ever kidnapped once in Ecuador. It was in around 2013, around 9 months before she left for Australia in August 2014. She recalls that she was going to University to get a document. She took a taxi from her home. The taxi driver stopped at a bakery to buy something and returned while she was in the taxi. He started driving, taking her to a dark alley. She asked him not to stop there. Then 3 men entered the taxi. There was one on each side of her on the back seat, and one in front. She began to scream and cry and asked to get out of the taxi. They hit her 3 or 4 times in the head, stomach and arms. She could see people watching from their cars. She was then driven a few blocks away. They took her phone and wallet and released her. She believes they released her because there were many people watching. The applicant made a big fuss. She believes the incident occurred on a weekday at around 7:30pm or 8pm. I asked why she was going to university to obtain documents at that time. She said that people work there at night. She did not go earlier as she was working.
I asked what she believes the motive for this incident was. She said she is not rich. She is middle-class. She had earings that they did not take. She does not believe it was motivated by money. She also does not know if any of the attackers had links to anyone that she had problems with in Ecuador. As to whether she was harmed sexually in this incident, she said that, in the physical struggle, her whole body was touched, including her breasts, but it was not a sexual attack. She does not know what they were planning, but they let her go after taking her wallet and phone.
I asked whether she recognised or knew anything about the taxi driver, or the 3 other men involved in this incident. She said that she knew nothing, but she was able to identify ‘the accused’. She did not know his name until then. Now he knows who she is and may seek revenge. As to how he knows who she is, she said that she had to attend a face-to-face meeting with him around 1 month after the incident. She believes the accused was charged and paid compensation to her family in around November 2013. While her 2024 Statement refers to her fearing retaliatory harm because the accused was jailed, her oral evidence did not refer to this. She said her family has not heard anything from him since. Nor has the applicant. I put to her that, given this lack of contact, despite her parents continuing to live at the save address and run a business involving public interaction, I may find this person is not looking for her. She had no response to this.
In support of the claim that she was kidnapped, the applicant submitted an ‘Identification Report’, which she described as a police record. It is undated and bears no official markers. It identifies a person of the applicant’s name as the complainant in proceedings occurring [in] September 2013 in which a [named male person] is identified as the person who drove the car ‘while others entered the car and hit me in the mouth[39]. The applicant claims that this record ‘certifies I was kidnapped and assaulted when I tried to request online that they stopped the harassment.’ When I put to the applicant my concerns regarding the lack of official markings in this document, the absence of a document date, and the high prevalence of fraud in Ecuador, she responded that her parents obtained this document and sent it to her by email or [social media]. I asked if she could submit the email or message from her parents enclosing it. She said she would look for it. To date it has not been submitted. She also said that she will ask her father to approach the police to get a new document. No further police documentation has been submitted. Based on the evidence before me, I do not consider the Identification Report to be a genuine document. I do not give it any weight as evidence of the truth of the applicant’s claim that she was kidnapped, assaulted and robbed in 2013 as claimed.
[39] The Spanish language version was accompanied by an accredited NAATI English translation. It was first attached to the applicant’s email to the Department dated 16 October 2021 and subsequently submitted to the Tribunal on several occasions, including with the 2024 Submissoins
The applicant’s evidence regarding her claimed kidnapping contains concerning anomalies, including in its various characterisations as either a ‘sexual assault’[40] or an assault which was not sexual in nature. Her 2024 Statement makes a link between the 2013 Kidnapping and vague threats allegedly made to her by [Ms D] and [Ms C]. Her evidence regarding those threats casts doubt on their truth, and also on the truth of her claim that the 2013 Kidnapping occurred. Her written claims are that the accused in the 2013 Kidnapping was jailed, while her oral evidence did not refer to this. Her 2024 Statement included that the 2013 Kidnapping was planned by the Correa secret police, while the applicant’s oral evidence identified no reliable basis for that claimed belief. On the evidence before me, I have doubts about the truth of the claim that the 2013 Kidnapping occurred.
Mother’s Salt Overdose: 2013
[40] 2024 Statement, paragraph31
The applicant claims that, soon after the 2013 Kidnapping[41], Correa’s agents attempted to murder her mother with a salt overdose when she bought a [food item 1][42]. Her mother [sustained a disability] due to extreme high blood pressure caused by potassium and was hospitalised[43]. She submitted to the Tribunal documents which appear to be untranslated hospital records relevant to her mother’s hospitalisation for a salt overdose[44]. The applicant saw the man involved. He was at the [Hospital 1] to see the effects of his action[45].
[41] email from the applicant to the Tribunal dated 26 January 2021
[42] emails from the applicant to the Department dated 16 October 2021 and 22 October 2021
[43] Email from the applicant to the Tribunal dated 10 January 2022
[44] Attached to an email from the applicant dated 10 January 2022
[45] Email from the applicant to the Tribunal dated 11 January 2022
Relevant to these claims, the applicant’s evidence early in the hearing was that no one in her family in Ecuador has had any problems there relevant to her claims. Later in the hearing she repeated this, adding that this is because no one else in her family works in the media.
Later in the hearing I put to her that she previously claimed her mother was targeted for murder by Correa’s agents through a salt overdose contained in a [food item 1]. I queried why she did not mention this when asked about any problems her family have encountered in Ecuador. She responded that she thought the Tribunal was asking only about harassment. She continued that she saw a man following her mother and herself to hospital when her mother fell ill. I asked whether she has ever had evidence that a third party intentionally put excess salt in her mother’s food. She said she has never had evidence, just a suspicion based on seeing a man following herself and her mother into the hospital. Since then, no one has tried to approach or harm either of her parents, even though they continued to live at the same address and run a business which serves and interacts with the public. When the above concerns were discussed with the applicant, she responded ‘okay’.
On the evidence before me, I do not accept that the applicant’s mother was ever targeted for harm by anyone in any way, including by intentional salt overdose. I do not accept that agents of the Correa Government have ever expressed an adverse interest in the applicant’s parents.
Delay in Departure
I discussed with the applicant that she held a passport since Sept 2011. I asked whether she considered a long-term departure from Ecuador before coming to Australia in August 2014. She said she was applying to overseas universities to study and did not get approved until late in 2013. Her evidence was also that she was applying and sitting exams for a Correa Government scholarship to support her intended international studies, which she was ultimately awarded. These factors together compound the Tribunal’s cumulatively significant concerns about the truth of the applicant’s claims that she has ever had an actual or perceived profile as a critic or opponent of the Corea Government.
[social media] Threats
The applicant’s 2024 Statement and oral evidence at hearing made repeated reference to her receiving threats on [social media][46]. I discussed these claims with the applicant, including whether she has evidence of those posts. She said she did not. Despite her evidence that she continues to hold social media accounts in her full name (namely [social media], Instagram and [social media]) she has given no supporting evidence of any threats received on those accounts. As set out in the 359A Letter to the applicant, the seeming absence of contact from her claimed harassers, notwithstanding the ease with which her social media accounts such as [social media] allows contact (ie by clicking on a ‘message’ tab), suggests a lack of interest by them pursuing or harming the applicant in any way. The applicant did not respond to this concern, and it remains part of the reason the Tribunal doubts the credibility of her claims that she has ever been pursued for harassment or harm by anyone in Ecuador, for any reason; and that she faces a real chance of serious harm from that people in the reasonably foreseeable future
[46] Eg, 2024 Statement, paragraph 29
On the evidence before me, I do not accept that the applicant has ever received threats on social media, including [social media].
Reference to Lesbianism
In an email to the Department dated 17 October 2021 the applicant claims people have accused her of being a lesbian. During the hearing I asked about the relevance of this to her protection claims; who made this ‘accusation’ and when. She said strangers said this to her as a general insult. It happened around 10 times. Her evidence was, at best, very general, and referred vaguely to verbal insults which do not rise to the level of serious harm, nor suggest that the applicant faces a real chance of serious harm in the reasonably foreseeable future in connection with perceived sexual orientation.
Political Opinion
Relevant to the applicant’s claims that she held and expressed political opinions critical of Correa’s Government in Ecuador in Australia, I asked where and when she expressed those views in Australia since arriving in August 2014. She referred to making [social media] posts to the effect that [Mr A] was a sexual harasser. She also has a blog and sometimes writes about politics. She does not have any particular political point of view and has never tried to ‘establish a war’ against anyone. She only really spoke to her co-workers about Correa’s attempts to control journalists. I asked whether she is saying she never published anything online or otherwise which she thought would be considered critical of the Correa Government. She said this is correct. She just wanted to report the truth about [local subjects] and other matters relevant to her city.
She subsequently submitted screenshots of brief [social media] posts made in an account held in her name and bearing her image. The posts do not mention [Mr A] and had been ‘liked’ by no more than 2 people, often including the applicant. They did not indicate wide circulation, nor demonstrate that the applicant has any specific political opinions to express beyond saying that she hates Correa and his ‘sexual harassers and killers’. I do not accept that these posts give the applicant a profile as a political opponent of the former Correa Government, or that they establish her as a person with any interest in expressing any political point of view.
She also submitted samples of work published on her website, [Website 1][47]. The articles are [titles given]. The articles provide general commentary on women in business, politics and society and do not discuss politics in Ecuador in any way. While the Tribunal asked the applicant to submit samples of any of her work in Ecuador which evidences her political opinions, no such work was submitted.
[47] Attached with Post-Hearing Submissions submitted on 12 December 2024
I discussed with the applicant her written claims that her exposure of corruption and criminality in the Correa government gives rise to a real chance of retaliatory serious harm to her in Ecuador. Her evidence was that this refers to the protection claims she has made and the harassment she reported to [University 1] regarding the Spiking Incident and the Sex Video. I explained to the applicant that the detail of her protection claims is kept confidential by the Australian Government. Similarly, information she has given in the context of receiving mental health counselling is also treated as confidential. In this context I asked why she believes Correa Government agents or supporters would know she has given that information. She said she sent emails to the scholarship office in Ecuador in around 2015/2016 complaining that people from the Correa Government were harassing her. She said she will look for those emails and submit them. I asked why she sent such emails to the Correa Government, which was then in power, if she believed that government was behind her harassment. She said she was angry about the physical and sexual assault, which she felt was politically motivated as it started after she left [Newspaper 1].
Relevant to the above, the applicant emailed the Department on 22 October 2021 forwarding a message which seems to be from the applicant to [email address] dated [in 2015] stating. The email states:
‘I have many questions I need to sue Ecuadorian government for sexual harassment and selling the video of a rape online to be sexually assaulted in Ecuador after being attacked by a co-worker and her husband. Then they send the video to [University 1] to make someone attack me here. After sending people to kill me in Ecuador. I do not know what to do? Everything to defend a drug addict name [Mr E] in Ecuador and the person who put the video online now I am scared for my life and I do not know what to do. Someone is going to kill me’
[Mr E] has not been mentioned in any other aspect of the applicant’s protection claims. In a further email to the Department of the same date the applicant added ‘I had been requesting support since I arrived but I was ignored’. That email forwards an email from the applicant to [email address] dated [in] 2015, with subject ‘Help’ and content stating ‘The government sent the video to my University. What could I do about it? It would risk my reputation as student. Even professors defended this kind of craziness so I would like to know how could I start a legal process against these criminals?’
There is no evidence before me of the applicant emailing the scholarship office in Ecuador. At most, the above emails indicate that the applicant has made allegations regarding the Spiking Incident, the sexual assault, the Sex Video and the Correa Government’s campaign of harassment since around December 2015. Those claims have been thoroughly explored with the applicant at hearing, and as reasoned above, I have strong doubts about the truth of those claims. The emails detailed above do not establish that the applicant contacted the Ecuadorian scholarship office to complain about Correa Government agents harassing her; or that the claims she has made to [University 1], the department or Tribunal regarding these matters is known or will be known to Correa supporters or agents in Ecuador in the reasonably foreseeable future.
100. On the evidence before me, I am not satisfied that the applicant has now, or will have in the reasonably foreseeable future, a profile as a person who has made allegations against the Correa Government to the Department, Tribunal or to [University 1].
Letter from Father
101. The applicant submitted to the Tribunal a letter, purportedly from her father, addressed to the Administrative Appeals Tribunal. When initially submitted, it was described by the applicant as corroborating her fears of harm from people who harassed her[48]. The same letter was subsequently re-submitted to the Tribunal[49], together a document described as ‘letter in English’. The applicant said at hearing that the English version of her father’s letter, originally in Spanish, was translated by her. I discussed with her that the English version appears to bear a different date from the Spanish version; it is addressed to the Tribunal; and is in word format; and that neither the English or Spanish version of the letter is signed. I explained that these features together suggest that the letter was written for the purpose of supporting her Review Application, and that, being a word document with varying dates identified, it appears susceptible to editing, particularly if translated into English by the applicant. I explained that I have concerns about the reliability of that document and its value as independent evidence of her claimed circumstances. The applicant said that the original Spanish version of the letter was sent to her by email from her father. I asked if she is able to submit a copy of that email with the letter attached. She said she would, however it has not been submitted. On the evidence before me, I do not accept that the purported letter from the applicant’s father reflects his independent views, or that the English translation is reliable. I give the letter no weight in establishing the truth of the applicant’s claimed circumstances.
[48] email from the applicant to the Tribunal dated 29 June 2022
[49] Email from the applicant dated 25 July 2023
Findings of Fact – Profile and Past Harm
102. As discussed with the applicant at hearing, the Tribunal’s first task is to assess the credibility of the material facts on which her protection claims rely. Throughout the hearing and in the 359A Letter, the Tribunal raised with the applicant multiple concerns regarding the credibility of her claims and evidence. They are detailed above, and, while not singularly determinative, the concerns are cumulatively significant. Considering the evidence in its totality, I do not accept that the Spiking Incident, including a sexual assault of the applicant in 2010, occurred. I do not accept that a Sex Video of that assault was taken, uploaded to the internet or sent to [University 1]. I do not accept that any Sex Video of the applicant was in public circulation or that it led to the applicant being sexually harassed in Ecuador or elsewhere. I do not accept that the applicant ever expressed anti-Correa views while working at [Newspaper 1 variant], or that she was perceived to hold political opinions which were opposed to the Correa Government. I do not accept that she was followed by or of interest to Correa’s agents or secret police after leaving [Newspaper 1 variant] in February 2011. I do not accept that secret police or anyone else routinely followed her in the streets or routinely touched her sexually. I do not accept that she was threatened by anyone, including [Ms C] or [Ms D]. I do not accept that the 2013 Kidnapping occurred. I do not accept that her mother was intentionally overdosed with salt by anyone, including Correa operatives. I do not accept that her computer was hacked by Correa operatives or anyone else. I do not accept that Correa operatives targeted her in her [subject 1] class. I do not accept that she was accused of being a Lesbian. I do not accept that she had, at the time she left Ecuador for Australia in August 2014, any actual or perceived profile as a critic of the Correa Government or that she was of adverse interest to the Correa Government.
103. I accept that she was sexually propositioned once at [Newspaper 1] and that her editor in chief expressed romantic interest in her at [Newspaper 1 variant]. I accept that she declined those advanced, and that she left [Newspaper 1] because she felt uncomfortable in his presence. I find that, since leaving [Newspaper 1] in February 2011, she has had no interaction with or from [Mr A]. I do not accept that she has made online posts mentioning him, or that she faces a real chance of retatliatory harm from him in relation to those posts.
104. I accept that there was a girl in her [subject 1] class who took a dislike to her. I do not accept that this girl had any connection to the Correa Government or that her dislike of the applicant was politically motivated.
105. I accept that the applicant studied and worked as a journalist in Ecuador. I accept that, at the time of her departure from Ecuador she was the beneficiary of an AUD$[amount] scholarship awarded to her by the Correa Government. I accept that she only partially completed the [Qualification 2] course she planned to complete under that scholarship.
106. I find that, by choice, since 2018, the applicant has undertaken a [Qualification 3] in Australia because she no longer wants to be a journalist; she had almost completed her [Qualification 3] at the time of hearing; and her intention in future is to pursue a career in business, marketing and communications, and perhaps write a book on Australian politics.
Reasonably Foreseeable future
107. It is submitted by the applicant’s representative that the applicant faces a real chance of serious harm in Ecuador on the following individual and cumulative grounds:
- Her status as a woman in Ecuador;
- A woman who has been sexually assaulted;
- As someone who has been kidnapped;
- As someone who has publicly expressed anti-Correa Government opinions; and
- As someone who is a journalist.
108. As reasoned earlier in this decision, while I accept that the applicant was sexually propositioned once while at [Newspaper 1 variant] in 2010/2011, and I am willing to accept that she experienced some level of sexual harassment in the form of unwelcome gestures and words from men during her life in Ecuador, I do not accept that the Spiking Incident and related sexual assault occurred, or that a Sex Video was made or uploaded which depicts the applicant. I do not accept that, beyond the 2 incidents and low level sexual harassment she experienced generally as woman in Ecuador and Australia, that she is a woman who has been sexually assaulted in the past. Nor do I accept that she is a woman who has been kidnapped.
109. In relation to the characterisation of the applicant as a person who has publicly expressed anti-Correa Government opinions, while I accept that she has made brief [social media] posts insulting Correa and his people, I do not accept that she has a profile in Ecuador as a person who as publicly expressed anti-Correa opinions. On her own oral evidence, she does not have any particular political point of view and has never tried to ‘establish a war’ against anyone. On the evidence before me I do not accept that the applicant had ever had an actual or perceived profile as a person with anti-Correa views, or as a person who has publicly expressed such views. I do not accept that she has any desire or intention to express political opinions of any nature in Ecuador in the reasonably foreseeable future.
110. I accept that the applicant is a woman. I accept that she studied and worked in journalism and media before departing Ecuador in 2014. I do not accept that she ever expressed views opposed to the Correa government while working in journalism and media in Ecuador or that she had a profile as a Correa critic at the time she departed Ecuador.
111. I accept that she partially completed a [Qualification 2] at [University 1] between 2014 and 2016. I accept she commenced a [Qualification 3] in Australia in 2018, which is almost completed; that she enrolled in that course because she no longer wants to work in journalism; and that she intends to pursue a career in business, marketing and communications and would like to publish a novel about Australian politics.
112. On the basis of what is accepted of the applicant’s claimed circumstances, I have considered her risks of serious harm in Ecuador in the reasonably foreseeable future.
Journalism
113. As detailed in the 2024 Submissions and discussed with the applicant at hearing, the Corea Government was in power in Ecuador from 2007 until 2017[50]. In 2013 the Correa Government approved the Organic Law of Communication which repressed freedom of expression and imposed punishment (fines and sanctions) against journalists who disseminated information aimed at discrediting a person’s public credibility[51]. The applicant submitted news clippings regarding harm suffered by prominent, high-profile journalists in Ecuador[52]. While I accept that he applicant worked in journalism and media in Ecuador, her own evidence at hearing was that her profile as a journalist in Ecuador was not high; she never published content which would have been considered sensitive to the Correa Government; and she gave no evidence that she was ever punished under Correa’s communications laws.
[50] Congressional Research Service, Ecuador: Country Overview and U.S. Relations (28 May 2024), [page 1] (available at: The University of New Mexico, Ecuador’s New Communications Law: Media Democratization or Gag Law? (19 July 2013) (available at: The news clippings include reference to Janet Hinostrozar and the assassination of Fernando Villavicencio[52]. - Fernando Villavicencio is reported to have been an investigative journalist and Presidential candidate when murdered; and Janet Hinostroza was a leading television reporter in Ecuador who investigated human and arms trafficking, the Ecuadoran police, and extrajudicial killings
114. As reasoned above, I do not accept that the applicant had, in Ecuador, at the time she left in August 2014, any actual or perceived political profile there. Nor do I accept that she has expressed political opinions relevant to Ecuador since her departure, but for a few comments on her [social media] page which have had very limited circulation. I do not accept that those [social media] comments or any other factor has given the applicant a political profile of any nature in Ecuador.
115. I have considered the applicant’s background in journalism and media, together with her evidence that she now intends to pursue a career in business, marketing and communications and would like to publish a novel about Australian politics. The United States Department of State (USDOS) reported in April 2024 that, despite Ecuador’s constitution providing for freedom of expression, laws continued to restrict that right, with widespread harassment and violence against journalists leading to self-censorship. The harassment and violence reported was directly in relation to journalists and media outlets considered to undermine government interests. The report also refers to libel and slander laws being used to silence political commentary[53]. I accept that journalists and those who publish commentary undermining powerful individuals and officials in Ecuador face risks of harm and may self-censor out of fear of serious harm. However, on the evidence before me, I do not consider the applicant to be such a person. I find that she does not have an interest or desire to work as a journalist in the reasonably foreseeable future; that she does not have any political opinions relevant to Ecuador that she wishes to express now or in the reasonably foreseeable future; and that her intended career path in business, marketing, communications and authoring a book, does not give rise to a real chance of serious harm to her in Ecuador in the reasonably foreseeable future. Nor do I accept that her past work as a journalist gives rise to a real chance of serious harm to her in Ecuador in the reasonably foreseeable future.
[53] USDOS - US Department of State: 2023 Country Report on Human Rights Practices: Ecuador, 23 April 2024Women and Gender Based Harm
116. It is submitted that, as a woman, the applicant faces a real chance of gender-based harm in Ecuador in the reasonably foreseeable future, including rape and other forms of sexual harassment. The written legal submissions reference reports to the effect that, despite rape being criminalised under Ecuadorean law, the government does not enforce the law and that sexual harassment remains common in public spaces and on social media[54]. News articles regarding criminality and generalised violence in Ecuador was also submitted.
[54] US Department of State, 2023 Country Report on Human Rights Practices: Ecuador (ibid); InSight Crime, Ecuador’s Kidnapping Epidemic, Told by a Survivor (6 September 2024) (available at: Ecuador's Kidnapping Epidemic, Told by a Survivor).
117. I accept that sexual harassment and generalised violence are commonly occurring concerns in Ecuador. However, this must be considered in the context of the applicant’s individual circumstances. As reasoned above, the applicant was born and raised in Guayaquil, Ecuador; she lived, worked and studied there from birth in [year] until her final departure in 2014 (around [age] years). In that time, she completed an undergraduate degree, undertook evening [subject 1] classes, had continuous employment and travelled in and out of Ecuador. On the accepted facts, the only harm she suffered in her [number] years in Ecuador comprised an unwelcome sexual text message from her boss at [Newspaper 1 variant] who later sought a romantic relationship with her; and unwelcome stares and sexual attention from strangers. On the evidence advanced, I do not accept that the applicant experienced, in the past, sexual harassment or violence which rises to the level of serious harm.
118. While past harm is not determinative of an applicant’s risks of serious harm in the reasonably foreseeable future, it is relevant. Also relevant is that, since her departure from Ecuador in 2014 the applicant has undertaken further study and demonstrated her capacity to live independently in a foreign country and environment where she does not have family support. She has given evidence that her parents continue to live in the same family home she was raised in, that they continue to run a business in that area, and that she has regular ongoing contact and support from them. On the evidence before me, I find that her parents have not been threatened or harmed by anyone for any reason, notwithstanding the evidence advanced regarding crime and generalised violence in Ecuador. I find that the applicant is familiar with the language, culture and life in Ecuador, that she has lived there in general safety for over 3 decades, that she has family support there.
119. While I accept that the applicant may not feel as safe in Ecuador as she does in Australia, on the evidence before me I do not accept that she faces a real chance of serious harm in Ecuador as a woman, including serious harm in the form of gender-based violence and/or generalised violence/crime.
Findings of Fact
120. On the evidence before me, for the reasons detailed above, I am not satisfied that the applicant faces a real chance of serious harm in Ecuador in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.
Findings on the Refugee Criterion
121. A refugee is a person who is found to have a well-founded fear of persecution in their country of reference. A fear is well-founded if there is a factual or objective basis for that fear or if there is a ‘real chance’ of it occurring. A real chance is a substantial, as distinct from a remote chance 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. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
122. As reasoned above, I am not satisfied that the applicant faces a real chance of serious harm in Ecuador in the reasonably foreseeable future. I am therefore not satisfied that the applicant faces a well-founded fear of persecution in Ecuador under section 5J of the Act.
Findings on Complementary Protection
123. Having found that the applicant does not meet the refugee criterion, I have considered whether on the evidence before me, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ecuador. The threshold for assessing ‘real risk’ is the same as for assessing ‘real chance’.
124. As reasoned above, I have found that the applicant does not face a real chance of serious harm in Ecuador for any reasons identifiable on the evidence. Based on the same factual analysis and findings I am also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Ecuador there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusions
125. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
128. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 12 November 2024
Representative: Ms Ivana Cugalj, Immigration Advice and Rights Centre
Criteria for protection visa
129. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
130. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
134. 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.
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.
…
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