2203659 (Refugee)

2203659 (Refugee) [2022] AATA 2449 (1 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2203659
COUNTRY OF REFERENCE:                   United States of America
MEMBER:Nathan Goetz
DATE:1 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 June 2022 at 2:03pm
CATCHWORDS
REFUGEE – protection visa – United States of America – abused by ex-partner and father – applicant has Australian criminal convictions – outstanding warrant for arrest of applicant in home country – aggravation of mental health condition – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 116, 424AA, 425, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION AND FINDINGS
The Tribunal has considered the relevant contents of the Department file and the Tribunal file, as well as the applicant’s oral evidence. Where the Tribunal has considered material from other sources, that consideration and the applicant’s response is detailed in this decision record. Where the Tribunal had ‘information’ that would enliven its obligations under s 424AA, the Tribunal raised that information with the applicant in the usual way. The Tribunal notes that where it had matters that would not be considered ‘information’ for the purpose of s 424AA, the Tribunal still adopted the s 424AA procedure.
Identity and relevant migration and procedural history
In her protection visa application form, the applicant identifies as [age]-year-old female citizen of the United States of America. The Tribunal is satisfied that the applicant is a citizen of that country with no right to enter and reside in a third country, meaning that for the purpose of the protection visa application assessment, the country of reference is the United States of America.
On [date] March 2016 the applicant arrived in Australia holding an electronic travel authority visa that was granted the previous day. That visa was valid until 29 September 2016.
On [date] April 2016 the applicant departed Australia. The applicant told the Tribunal hearing that she travelled to the United States. On [date] July 2016 she returned to Australia.
On [date] September 2016 the applicant again departed Australia. In her protection visa application form she declared that she travelled to [Country 1]. She returned to Australia the same day. That same day she was granted a working holiday visa that was valid until [September] 2017.
On [date] September 2017 the applicant again departed Australia. In her protection visa application form she declared that she travelled to [Country 1]. She returned to Australia the same day.
On 22 September 2017 the applicant applied for a tourist visa and on 4 October 2017 she was granted a bridging visa in connection with that visa application but withdrew the tourist visa application the same day. On 8 November 2017 the bridging visa associated with her tourist visa application ceased.
On 29 September 2017 the applicant applied for a combined partner visa and that same day she was granted a bridging visa in connection with that visa application. On 18 April 2018 the combined partner visa was refused by a delegate. On 4 May 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant the applicant the combined partner visa. On 8 May 2019 the Tribunal remitted that decision for reconsideration in AAT case 1812937. On 30 March 2021 a delegate again refused to grant the combined partner visa. The applicant again applied to the Tribunal for review of the refusal decision. On [date] 2021 the Tribunal affirmed the refusal decision in AAT [Case 1]. On 23 July 2017 the applicant applied for judicial review of the Tribunal decision. On 12 April 2022 the Court finalised the judicial review on the basis that it was discontinued.
On 13 July 2018 a delegate cancelled the bridging A visa that had been granted in connection with the combined partner visa under s 116 of the Act. The applicant became an unlawful non-citizen and was placed into immigration detention. On 22 March 2022 the applicant applied to the Tribunal for review of the decision to cancel the bridging A visa. On 31 March 2022 the Tribunal affirmed the decision to cancel the bridging A visa in AAT case 2203659.
On 19 July 2018 the applicant applied for a bridging E visa in connection with the review application to the Tribunal concerning the bridging A visa cancellation decision. On 12 April 2019 a delegate refused to grant the bridging E visa and on 23 April 2019 the applicant applied to the Tribunal for review of that decision. On [date] 2019 the Tribunal remitted that decision for reconsideration in AAT [Case 2]. On 23 August 2019 a delegate granted the bridging visa, and the applicant was released from immigration detention. On 3 March 2021 a delegate cancelled the bridging visa, and the applicant became an unlawful non-citizen. On 29 March 2021 the applicant was detained in immigration detention.
On 30 January 2022 the applicant applied for the protection visa. On 15 March 2022 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy ss 36(2)(a), (aa), (b) or (c) of the Act. On 15 March 2022 the applicant applied to the Tribunal for review of the decision to refuse to grant her the protection visa.
On 29 April 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited her to appear at a Tribunal hearing at 16 May 2022 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do so because it was unable to make a decision favourable to the applicant on the material it had. The Tribunal scheduled the hearing for 16 May 2022. Despite the hearing invitation being sent by the Tribunal that day, the applicant did not receive it. The Department advised the Tribunal that it had delivered the invitation form on 9 May 2022. The applicant consented to the Tribunal holding the hearing on 16 May 2022 as scheduled.
On 16 May 2022 the applicant appeared at the Tribunal hearing. As the applicant is detained in an immigration detention centre, she appeared at the Tribunal hearing by audio-visual link.
Claims raised in protection visa application form
The applicant wrote that she left the United States in an attempt to save her life from her ex-partner, who works for United States law enforcement as a police officer. She claimed to have experienced harm in that country. She wrote that she was sexually, physically, mentally and financially abused. She referred the reader to ‘attachments for further details.’
She claimed the person responsible for this abuse was her ex-partner who she named as [Mr A] and her father [Mr B]. She referred the reader to attachments for further details.
She claimed to have sought help in the United States. When asked for details, she wrote United States law enforcement in [Town 1], [State 1]. She directed the author to attachments for further details.
She was asked whether she moved or tried to move to another part of the United States to seek safety. She indicated that she did. She wrote that she tried relocating out of [State 1], but it never made a difference because her ex-partner was able to get information as a police officer.
She claimed that if she returned to the United States, her life would be threatened by her ex-partner. She would not receive equal justice or protection. She claimed that there would be no chance of overcoming the biased opinion of the United States Department of Justice system that is in place. She directed the reader to attachments for more information.
She believed that she would be harmed if she returned to the United States because she would be in danger from her ex-partner. He has made it very clear to her that if she returned to the United States, he would murder her. She claimed to face harm from the justice system because her ex-partner is a police officer and has used her father and her ex-partner as complainants in charges against her. She directed the reader to attachments for more information.
She did not think that the authorities of the United States could and would protect her because on multiple occasions she tried to get a restraining order against her ex-partner and was denied every time. She was told that her ex-partner was under stress and that if she reported domestic violence it would force him to lose authority to carry a weapon which would mean he could lose his job as a police officer. She was told by one officer that she needed to run and do it fast because she would never receive help. She directed the reader to attachment for more information.
She did not think that she would be able to relocate within the United States because her ex-partner was a police officer, and this enables him to get information about her. She would never be safe or alone and would be under constant threats. She directed the reader to attachments for more information.
The applicant was asked about her criminal history and she declared that [in] September 2017 she had been convicted or fraud, deception, white collar crime and received a [number]-year suspended sentence. She further declared that she has a warrant for her arrest from the United States for offences from [May] 2018. She detailed the complainants as her ex-partner and father. She directed the reader to attachments for more information.
The attachments that the applicant referred to totalled 50 documents, one of which was a 14-page statement expanding upon the responses contained in the protection visa application form. In the statement, the applicant detailed that the domestic abuse she claimed was inflicted upon her by her former partner during the course of their relationship.
The applicant provided screenshots of text messages received from telephone number [number]. The text messages are not a continuous flow of messages, but individual screenshots apparently taken on the day the message was received because the detail provided as the time and date of receipt all read that they were received ‘today’ with the particular times noted. Those messages are detailed later in this decision record.
General concerns about credibility
In the course of considering this matter, the Tribunal had regard to the fact that the applicant had appeared before the Tribunal on several occasions. The Tribunal read those decision records. Reading those decisions gave the Tribunal some concerns about the applicant’s credibility. The Tribunal raised those concerns with the applicant.
First, in Tribunal [Case 2], there had been a discussion with the applicant about whether she had provided misleading information in her tourist visa application that she applied for on 22 September 2017. That Tribunal detailed that in the tourist visa application form, the applicant declared her relationship status as divorced. She made no mention that she was in a de facto relationship. A week later on 29 September 2017 the applicant applied for the combined partner visa and claimed that she had been in a relationship with the sponsor [Mr C] since 1 September 2016. That Tribunal raised this with the applicant because it suggested that she had provided misleading information to the Department.
The applicant responded to that Tribunal’s concern by stating that she had sought advice from a migration agent who had effectively told her that she was unlikely to be granted a tourist visa if she disclosed that she was in a relationship with an Australian citizen. She initially suggested that what she had done was not admitted that she had provided misleading information and apologised for providing misleading information to obtain a benefit.
In the current review application, the Tribunal discussed the fact that she had not declared that she was in a de facto relationship with [Mr C] in the circumstances outlined previously. The Tribunal noted that this may suggest to the Tribunal that the applicant had a flexible approach to the truth. The applicant repeated her explanation and apology that she had given to the previous Tribunal about why she did not declare that she was in a de facto relationship with [Mr C] when she applied for the visitor visa.
The Tribunal has considered that explanation but was not persuaded by it. To the Tribunal’s way of thinking, just because the applicant was advised to provide incorrect information in the visitor visa application to ensure she was granted the visitor visa, it does not follow that she should act on that advice. The applicant knew that it was incorrect to declare in the visitor visa application form that she was not in a relationship, given her evidence that she had been in one since September 2016. The Tribunal is satisfied that the applicant’s willingness to make a false declaration in the visitor visa application form demonstrates a willingness to provide incorrect or false information if she sees a benefit in doing so to achieve a migration outcome.
When considered in combination with the other concerns that the Tribunal has about the truth of the applicant’s claims and her credibility, the Tribunal is satisfied that the applicant has a demonstrated flexible approach to the truth and is prepared to fabricate evidence in order to achieve a migration outcome.
Second, in Tribunal [Case 2], there had been a discussion with the applicant about her Australian criminal history. In that case, that Tribunal noted in its decision record that the applicant had been found guilty of the following offences:
(i)        Fraud – Dishonestly gain benefit/advantage by employee (between 01/08/2016 and 17/04/2017) and sentenced to 12 months imprisonment to be suspended for 2 years
(ii)       Fraud – Dishonestly cause detriment (on 28/11/2016) and sentenced to 12 months imprisonment to be suspended for 2 years;
(iii)      Fraud – Dishonestly cause detriment (on 30/11/2016) and sentenced to 12 months imprisonment to be suspended for 2 years;
(iv)      Forgery (between 01/08/2016 and 14/11/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(v)       Uttering (between 01/08/2016 and 14/11/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(vi)      Forgery (between 01/08/2016 and 18/08/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(vii)     Uttering (between 01/08/2016 and 18/08/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
That Tribunal went on to detail the material facts to which the applicant had pleaded guilty. That Tribunal described the applicant’s offending being divided as relating to 3 sets of circumstances.
The first category relates to offences committed by the Applicant in securing and maintaining employment with a company called [Employer 1].
“[Employer 1] is a private company that operates in [Queensland]. The company employees trained persons to work [with Occupation 1]. The role of a [Occupation 2] is aimed at working alongside [Occupation 1] to focus on [administrative tasks] and other clerical duties.
The complainant company’s staff recruitment policy targets persons with [Occupation 1] knowledge such as [Occupation 1] students or like persons. Potential employees are required to have a sound base of [Occupation 1] knowledge and [terminology]. Given that [Occupation 2] are translating [Occupation 1 information] such knowledge is vital.

In October 2016 the defendant applied for a job with [Employer 1]. At the time of applying the defendant provided a detailed resume to the complainants. Part of this resume included that she was a formally trained [Occupation 1] and that she had undergone her studies at [University 1], [State 1], USA.
The defendants [sic] resume stated that she had obtained a [Occupation 1 qualification] having studied at [University 1] from 2013 to 2016.
The defendant subsequently went through the recruitment process with [Employer 1] where in various interviews she purported to be a US trained [Occupation 1]. The defendant over the recruitment period provided false contact details for the university and personal referees.
Subsequent checks and due diligence by the complainant company failed to verify the qualifications claimed by the defendant however she was none the less employed in the role of a [Occupation 2].
The defendant was employed in a casual role and a received a fortnightly pay check. The complainants advised that over a period of time they noticed the defendant displayed a lack of [Occupation 1] knowledge that one might expect form [sic] a trained [Occupation 1] .
The complainants advised that when questioned the defendant stated that she was suffering from brain cancer and that her treatments left her with some short term memory loss that affected her [Occupation 1] knowledge recall.
As such the complaints [sic] moved the defendant into a training and marketing role with the company. The defendant then trained other [Occupation 2] for the company and undertook a role of expanding the company into other [client locations] throughout Queensland and New South Wales.
In this role the defendant met with, and communicated with, various [Occupation 1] and [associated staff]. Throughout this period the defendant referred to herself verbally and in written communications as [an Occupation 1].
In total the defendant was paid some $[amount] between 13 November 2016 and 2 April 2017.
In April 2017 the QPS were advised by US law enforcement agencies that the defendant had never studied at [University 1], [State 1] and never received any other formal [Occupation 1] training.
Police then contacted the complainants and the formal complaint was made. The complainants advised that the defendant’s purported [Occupation 1] degree was the basis for her employment.
On 17 April 2017 the defendant took part in a formal record of interview with QPS detectives. During the interview the defendant admitted to gaining employment based on the false resume. The defendant admitted that she was not a trained [Occupation 1] and had never attended [University 1].
The defendant stated that she had made up these details in order to gain employment with the complainant company.
An examination of the defendant’s computer located a copy of the false resume that she used to gain such employment.”
The second category relates to offences committed by the Applicant relating to communication with a court in the United States regarding her inability to return to the United States to attend court owing to her claimed medical condition.
“Prior to leaving the USA the defendant was required to attend a court hearing in the [Town 1] County District Court, [State 1], USA in August 2016.
This hearing was in relation to unrelated theft offences that occurred in US jurisdiction.
On 16 August 2016 a faxed letter was received at the [Town 1] County District Court. The fax was later traced as having been sent from [Hotel 1], Queensland Australia’.
The letter purported to be from [Dr D] from [Clinic 1]. The letter stated that the defendant was required to stay in Australia for another five months to receive cancer treatment and hence was not able to return to the USA and appear in court.
Subsequent police checks show that the letter is a forgery. [Dr D] advises that at no stage did he ever produce such a letter and at no stage has he ever heard, or treated, the defendant.
Further investigations have failed to find any record of the defendant having sought cancer treatment whilst in Australia.
Checks with [Hotel 1] show that the defendant was staying at the [hotel] at the time of the letter being sent to the [Town 1] County District Court and that staff recall sending a fax to the USA on behalf of the defendant.
On 14 April 2017 QPS detectives executed a search warrant at the defendants [sic] address in relation to other matters. During the course of the search warrant police seized the defendants [sic] Apple laptop computer.
At this time the defendant took part in a formal record of interview. During the interview the defendant denied ever sending the letter to the [Town 1] County District Court and denied all knowledge of the offence.
The defendant also denied ever faking her cancer diagnosis and claimed that she had been set up by her family and friends who had their own agenda.
On 17 April 2017 the defendant was again further interviewed by QPS detectives. On this occasion the defendant changed her version and admitted that she never had never suffered nor been diagnosed with brain cancer.
A later search of the defendant’s computer found an exact copy of the forged letter under the hand of [Dr D].
The forged letter sent by the defendant was created in Queensland and was sent to the USA by the defendant whilst in Queensland.
The defendant was later issued with a NTA.”
The third category relates to offences committed by the Applicant regarding purchases she made over the Internet.
“On 28 November 2016 a female person, the defendant now before the court, has placed an online order with the complainant company and purchased a swimming pool and accessories. The total value of the items purchased was [amount]. At this time the defendant used Paypal to complete and pay for the transaction.
The defendant provided her contact telephone number and her address as [address redacted]. Checks made by police show that at the time this was the current address for the defendant. On 29 November 2016 the defendant attended at the complainant company and picked up the ordered items. At this time the defendant showed photographic identification in the form of a drivers license [sic].
Some days later the informant was contacted by Paypal and advised that the amount of a $[amount] had been removed from the complainant company’s bank account as Paypal had been contacted by the defendant and advised that she had not received the ordered goods from the complainant company.
The informant then contacted the defendant via SMS message to ascertain what had occurred. In a series of SMS messages between the defendant and the informant the defendant was advised that she was on CCTV footage at the complaint [sic] store picking up the items.
The defendant then changed her version and stated that the issue was between the informant and the ‘credit card’ owner and was due to ‘faulty materials’ being provided. The defendant refused to expand on this advised the informant that the matter did not involve her and that she had been advised to ‘stay neutral’. The informant then made a formal complaint to police.
On 10 May 2017 police executed a search warrant at the defendant’s address. At this time police located files and documentation relevant to the offence. The defendant took part in a formal record of interview in which she stated that she had picked up the pool equipment from the complainant company. The defendant then gave a version that her ex defacto in the United States had ordered the poor items for her and had used their joint Paypal account to pay for the goods.
The defendant stated that when she picked up the items she later found them to be faulty and not in proper working order. The defendant stated that at no time did she do the Paypal reversal and that her ex defacto must have done so. The vesion given by the defendant during the course of the interview was inconsistent and at odds with known facts and documentation received from PayPal.
This documentation shows that the order was placed by the defendant from within Australia and that the monies refunded went into the defendants [sic] bank account and accessed in Australia. As a result of other investigations into the defendant assistance has been sought from law enforcement agencies in the United States of America.
Initial advice from those agencies is the defendant’s ex defacto denies any knowledge of the matter and denies ever ordering any pool equipment for the defendant. The defendant was later issued with a NTA in relation to this matter.
RESTITUTION in the amount of [amount] has been paid to the informant/complainant [complainant’s name redacted] prior to the sentence.”
“… On 30 November 2016 the complainant sold [an appliance] via eBay to username [name].
The buyer provided the name [applicant name] of [residential address redacted]. [Applicant name] is a female person, the defendant now before the Court. The defendant paid $[amount] for the item plus a postage fee of $35.00.
The defendant used Paypal to make the transaction. The complainant then sent the item to the defendant at the listed address via Australia Post registered mail. Checks with Australia Post show that the item was delivered at 1:35 PM on [date] December 2016 and signed by a [applicant name].
Some days later the informant was contacted by Paypal and advised that the amount of a $[amount] had been removed from his bank account as Paypal had been contacted by [applicant name] and advised that she had not ordered the stated items. A formal complaint was then made to police.
On 10 May 2017 police executed a search warrant at the defendants [sic] address. At this time police located files and documentation relevant to the offence including the [appliance]. The defendant took part in a formal record of interview in which she stated that she had ordered the item from the informant on Ebay as outlined.
The defendant stated that she had never received the item and it had hence sought a refund. The defendant stated that the [appliance] located by the police during the search warrant was a new one that she had ordered it from [a store] online. The item that police seized did not appear new and had a number of wear marks consistent with an older and used item.
The defendant could offer no explanation why Australia Post documentation showed that the item had been delivered to her address and signed by her on the listed date. .The defendant was later issued with a NTA. Nil restitution sought as item has been recovered.”
In the present review application, the Tribunal noted that it had read that Tribunal decision record which detailed the facts to which the applicant pleaded guilty and that, to the Tribunal’s way of thinking, the offending showed grave dishonesty to achieve an outcome. The Tribunal put to the applicant its concern that this previous dishonesty was being repeated in the present visa application in order for the applicant to be granted a protection visa. In response to the Tribunal’s concern, the applicant conceded that she had lied in the past and that she had criminal charges against her for dishonesty but said that she was a ‘very different woman’ to the person she was in 2016 when the charges occurred, especially given the fact that she had been placed into immigration detention. The Tribunal understood the applicant’s oral evidence to be that she had learnt from her past behaviour.
The Tribunal considered the applicant’s response but is not persuaded by her explanation. The Tribunal struggles to accept that the applicant’s past demonstrated conduct of lying about qualifications, providing false contact details for referees, generating a fake medical certificate and, by her plea of guilty, proven dishonest conduct in order to obtain material goods without payment. The Tribunal is satisfied to make this finding when it considers the other concerns that the Tribunal has about the applicant’s credibility as discussed in this decision record. The Tribunal is satisfied that the applicant has a flexible approach to the truth and is prepared to say or not say whatever she thinks will assist her to gain a favourable outcome. The Tribunal is satisfied that the applicant has adopted this approach to her protection claims.
Claims relating to applicant’s ex-partner [Mr A]
In her protection visa application form, the applicant claims that she left the United States ‘in an attempt to save her life’ from an ex-partner who works as a police officer. She identified this person as ‘[Mr A].’ She claimed in the protection visa application form that she had been ‘sexually, physically, emotionally, mentally and financially abused.’ In a written statement accompanying the form, she detailed specific instances of violence. She claimed to have tried to relocate out of the state of [State 1] but it ‘never made a difference’ because [Mr A] was a police officer who was able to get information. She also claimed that she attempted on multiple occasions to obtain a restraining order against [Mr A] but was ‘denied every time.’
The applicant’s statement attached to the protection visa application form detailed the applicant and [Mr A]’s history together, including how the applicant supported [Mr A] while he completed and graduated from a police academy and how the abuse escalated. She wrote that since she met [Mr A] in 2012 ‘it has been nothing but constant fear and abuse combined with absolute shock and terror.’ She detailed various acts of violence directed towards the applicant and her family.
Attached to the protection visa application form were screenshots of numerous text messages sent from telephone number [number]. Having read the text messages, the Tribunal would categorise those messages as vulgar and threatening. Those text messages were screenshots of messages that were sent as text messages, all of which were dated as being received at a particular time ‘today.’ The applicant identified that those text messages were from [Mr A] and she said that she took the screenshots over the ‘last couple of years’ and she took the screenshots when she would receive the messages. She said the purpose of taking screenshots was to save the messages because she did not want to see them on her phone. She said she thought that she might need them for something. She deleted the messages from her phone as she took the screenshots.
At the Tribunal hearing, the Tribunal raised with the applicant its concern about the truth of the claims related to [Mr A] based on two pieces of evidence.
Tribunal’s concern about failure to detail that she was in a previous relationship with [Mr A] in her partner visa application form lodged 29 September 2017
Given the applicant claimed in the protection visa application form to have been subject to constant fear since meeting [Mr A] in 2012, and that they had been in a relationship for ‘more than four years,’ and referred to the couple living together with references to ‘at home’ and the fact that [Mr A] ‘remained living at the apartment that we shared together,’ it was curious to the Tribunal that in her partner visa application form she did not declare to have been in a previous relationship with a person named [Mr A].
Instead, the applicant declared that she was ‘divorced’ from a person named [Mr E] to whom she had been married on 21 March 2009 and that relationship ended on 15 June 2012. This suggested to the Tribunal that the applicant’s claims relating to a relationship with a person named [Mr A] were fabricated in order to be granted a protection visa.
The applicant’s response to the Tribunal’s concern about the fact that her previous relationship with [Mr A] was not detailed in her partner visa application form was that she did not realise that the relationship needed to be declared. She attributed this to the fact that the term ‘de facto’ was not common in the United States. She understood the question to be about previous marriages.

100. The Tribunal considered this response but was not persuaded by it. To the Tribunal’s way of thinking, the form was quite clear in asking whether the applicant had been in any relationships with a person other than the sponsor. Further, the Tribunal notes that at the time of lodging the partner visa application, it was contended that the applicant and [Mr C] were ‘living together and sharing our home, bed and lives’ which was a similar situation to that of her relationship with [Mr A]. She would have been alive to the issue of having a relationship where she lived with someone without being married being a ‘de facto relationship.’ It makes no sense to the Tribunal that the applicant would not declare that relationship with [Mr A] if it were true. Further, the Tribunal notes that in that partner visa application form, the applicant detailed that her previous marriage to [Mr E] ended because of physical and mental abuse. Given the then current status of her relationship with [Mr C] as a de facto, and the marriage breakup with [Mr E] being attributed to abuse, the Tribunal finds it curious in the extreme that the applicant would not detail that she was in a previous de facto relationship with [Mr A] which also ended due to abuse.
Tribunal concern about failure to raise protection claims concerning [Mr A] in applicant’s response to the Notice of Intention to Consider Cancellation of applicant’s detail that she was in a previous relationship with [Mr A] in her partner visa application form lodged 29 September 2017
101. Before the delegate cancelled the applicant’s bridging visa on 13 July 2018, the delegate wrote to the applicant via a Notice of Intention to Consider Cancellation (NOICC) and invited her to provide reasons not to cancel the bridging visa. The Tribunal told the applicant that it had read her response. In that response, the applicant made no mention of her claimed fear of harm of [Mr A], but instead provided various other reasons to not cancel the visa, such as cancelling the bridging visa would result in requiring [Mr C] to move to the United States to be with her, and that she would not want any children they have to be raised in the United States because gun violence terrifies her. To the Tribunal’s way of thinking, if the applicant was genuine in her claims concerning [Mr A], she would have detailed those reasons in her response to the NOICC.
102. In response to that concern, the applicant said that she spoke to her safety and fears of return to the United States but did not detail the specifics concerning [Mr A]. She said that in her mindset at the time as she was focused on everything related to her relationship and was not focused on her safety. She said she probably focused on what would happen to her relationship if she was required to return to the United States. She said she spent so long trying to get passed what happened to her with [Mr A] that she did not want to continuously focus on this.
103. The Tribunal has considered that response but is not persuaded by it. The applicant’s response to the NOICC was clearly focused on what would happen to her and her then partner in the future, requiring him to relocate to the United States, and the fear of her potential children growing up in a culture of gun violence. These concerns demonstrate a fear for the things that could adversely impact on her relationship in the future. To the Tribunal’s way of thinking, the applicant returning to the United States where she would, if her claims were to be accepted, be subject to future harm at the hands of [Mr A], would clearly impact on her relationship with [Mr C]. It is nonsensical to suggest that any harm the applicant faced would have no bearing on her circumstances in the United States, which she envisaged would require [Mr C] to live in the United States, and involve the couple having children.
104. When the Tribunal considers its concerns about the truth of the applicant’s claims concerning [Mr A] in combination the other concerns that it has about the applicant’s credibility, it comes to the conclusion that the reason the applicant did not detail that she was previously in a relationship with [Mr A] in her partner visa application form and did not cite her fear of harm from [Mr A] in her response to the NOICC was because the applicant was not previously in a relationship with [Mr A] nor suffered abuse or violence (however described) from him. The Tribunal is satisfied that the claims made concerning [Mr A] are manufactured in their entirety in order for the applicant to be granted a protection visa.

105. The Tribunal is comfortable making these findings despite the text messages that were produced by the applicant. If the applicant were to be believed that they were sent by [Mr A] over a course of several years, it casts further doubt concerning why the applicant did not detail her concerns about [Mr A] in her response to the NOICC, and her failure to detail that she was previously in a relationship with this person in her partner visa application. Given the fact that the screenshots of the text messages all read that they were received ‘today,’ the Tribunal cannot be satisfied that they were sent to the applicant as claimed. For all the Tribunal knows, the applicant may have sent those messages to herself in order to bolster her protection claims.
106. Given the concerns that the Tribunal has concerning the applicant’s credibility, it gives no weight to any corroboration of the applicant’s claims per the written statement from the applicant’s mother that was addressed to [Dr F] psychologist and provided by the applicant in support of her protection visa application. The statement was not written by an impartial and independent witness.
Claims relating to applicant’s father [Mr B]
107. In the applicant’s protection visa application form, she identified that her father [Mr B] was also a person who was responsible for her ‘sexual, physical, emotional, mental and financial abuse.’ She did not explicitly state that she feared future harm from her father if she returned to the United States.
108. At the Tribunal hearing, the applicant directed the Tribunal to the fact that her father is a complainant in the outstanding criminal charges in the United States. The Tribunal accepts that the Indictment discloses that this is the case. She claimed that she feared harm from her father upon her return to the United States because he had previously harmed her.
109. At the Tribunal hearing, she said that if required to return to the United States she faced physical and mental abuse from her father, as he had always done so. She told the Tribunal that she stopped living with her father when she was 8 years old when she went to live with her maternal grandparents. She described her father as an alcoholic and that her maternal grandparents would try and encourage a relationship between him and the applicant during periods of his claimed sobriety. She told the Tribunal that her mother and father remained married until the applicant was 16 years of age. At the age of 13 the maternal grandparents agreed that a relationship between the applicant and her father would not be in her interest and they stopped communicating from that point. When the Tribunal picked up on the fact that there was no communication between the pair from the time the applicant was 13 years of age, and that there had not been any instances of assault since that time, the applicant changed her evidence and said that what she meant was that there was no forced interaction between the two. She said that when she was older around the time her grandfather died and she was attending counselling, it was suggested that she reconnect with her father as a means of understanding why her father had abused her, as it may benefit her healing. The applicant then said that there were periods of time when they would be in contact and the relationship was combative and manipulative, and she could not continue to have a relationship with him.
110. The Tribunal is satisfied that the applicant’s evidence changed at the Tribunal hearing concerning the interactions with her father in an attempt to persuade the Tribunal that the risk she faced from her father was real. The applicant was clearly alive to the problematic nature of claiming to face harm now from someone she had no interactions with since the age of 13, and then changed her evidence to say that she did have interactions with him.
111. The Tribunal has considered the applicant’s claims concerning her father but is not persuaded there is any truth to them. If there were any truth to those claims, the Tribunal is satisfied that, similarly to the concerns that the Tribunal has about the applicant failing to detail her protection concerns about [Mr A] in response to the NOICC, she would have similarly detailed her concerns about her father in the NOICC if there was any truth to those claims. Further, the changing nature of her evidence concerning her interactions with her father at the Tribunal hearing led the Tribunal to conclude that the applicant has a flexible approach to the truth and is prepared to manufacture evidence in order to be granted a protection visa. The Tribunal is comfortable making this finding in combination with the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
112. Given the concerns that the Tribunal has concerning the applicant’s credibility, it gives no weight to any corroboration of the applicant’s claims per the written statement from the applicant’s mother that was addressed to [Dr F] psychologist and provided by the applicant in support of her protection visa application. The statement was not written by an impartial and independent witness.
Claims relating to outstanding criminal charges in the United States
113. The Tribunal noted to the applicant that it had looked at the Indictment that she provided in support of her protection claims. The Tribunal confirmed that it knew the applicant had an outstanding warrant for her arrest in connection with that Indictment, as an online search demonstrated that the applicant was on a ‘Wanted List’ from the US Federal Bureau of Investigation website. The applicant told the Tribunal she knew she was on that website. The applicant told the Tribunal that she became aware that she faced criminal charges in in September 2020.
114. Noting that applicant lodged the protection visa application in January 2022 despite being aware that she had criminal charges in September 2020, the Tribunal asked the applicant why she delayed lodging an application for a protection visa. The applicant said this was because the outstanding criminal charges were ‘not the main reason’ for requiring protection, and at that time, she was still in a relationship with [Mr C] and did not see the relationship ending, so she already thought that she was safe and secure in Australia. She disputed that she lodged the protection visa application just to avoid returning to the United States of America to face the criminal charges.
115. Concerning the criminal charges being a reason that the applicant seeks protection in Australia, the applicant clarified at the Tribunal hearing that the outstanding criminal charges in the United States was not a basis for protection claims in and of itself. The applicant told the Tribunal hearing that she accepted that in the event she was required to return to the United States, she would be arrested, remanded in custody pending any application by her for bail, and would be required to face the criminal charges. The protection concerns she had which arose from the criminal charges concerned the fact that the charges are subject to an Indictment in the United States District Court for [State 1] and she would be required to return to her local area where the charges were listed. She claimed that this would place her in the same location as [Mr A], meaning she faced a risk of harm from him there.
116. As detailed previously, the Tribunal does not accept that the claims concerning [Mr A] are true, meaning that the claimed risk arising from the applicant being required to return to a particular placed in the United States is without merit. Accordingly, the Tribunal does not accept there is any truth to the claim arising from the applicant being required to return to a particular place in the United States.
Claims relating to the applicant’s health
117. In the protection visa application form, the applicant did not specifically claim that she would suffer harm in the United States as a result of her claimed medical conditions. The Tribunal notes that the applicant provided a number of medical documents in her protection visa application form.
118. The Tribunal notes that the applicant did not claim in her protection visa application form that she feared harm in the United States on the basis of her claimed medical conditions. At the Tribunal hearing, the applicant confirmed that she was not raising that Australia owed her protection obligations on the basis of her physical medical conditions. The Tribunal notes that those health problems included high cholesterol, hypothyroidism, obesity, and vaginal infections, and that the applicant is currently/has previously been medicated for those conditions. The applicant accepted that any conditions requiring treatment would be available to her in the United States similar to Australia. For the sake of completeness, the Tribunal does not accept that any physical injuries or physical health problems experienced by the applicant are related to her claimed relationship with [Mr A].
119. She did, however, claim that if she were to return to the United States her mental health condition would be aggravated.
120. The Tribunal notes that the applicant provided the delegate a letter dated 22 November 2021 from [Mr G] psychologist, as well as a letter dated 6 December 2018 from [Dr F] psychologist in support of her claimed mental health conditions. Those reports diagnose a major depressive disorder, a presentation of a history of depression, anxiety and trauma symptoms, and a generalised anxiety disorder. At the Tribunal hearing, the applicant confirmed that the only reports she had submitted were from Australian-based practitioners. A fair reading of the reports concerning the applicant’s mental state suggest that the root cause of her mental health conditions are as a result of the claimed abuse from her father, and the abuse she claimed to have suffered from [Mr A].
121. The Tribunal has considered the contents of the reports. The reports and their diagnosis are from the applicant’s own claimed experiences. As discussed previously, the Tribunal struggles to accept that there is any truth to the claimed experiences. For the purpose of the various diagnoses, the Tribunal is not satisfied that the applicant is a reliable narrator. The Tribunal is not satisfied that the applicant’s claimed mental health conditions will be aggravated by her return to the United States because the Tribunal does not accept the factual basis upon which the diagnoses were made.
Applicant’s previous return from Australia to the United States of America
122. In the protection visa application form, the applicant declared that she departed the United States of America [in] July 2016 and that the date of her last arrival in Australia was [in] September 2017. The form asked for the applicant’s travel history and asked her whether she had travelled to any countries in the last 30 years. She was directed to give details in chronological order of travel related to work or study outside her usual country of residence, holidays or leisure trips, business, military deployment, visits back to her own country, and travel in transit to another country. The applicant declared travel to [Country 2] in 2015, [Country 1] in 2016 and [Country 1] in 2017.
123. However, as noted in the migration history at the start of this decision record, the applicant had in fact previously travelled to Australia [in] March 2016 and departed [in] April 2016. The records indicated that the applicant left on [date] April 2016 and travelled on flight [number] from Brisbane to Los Angeles and returned to Australia [in] July 2017 on flight [number] from Los Angeles to Brisbane.
124. The Tribunal was troubled by the applicant’s return travel to the United States given she claimed to fear harm in the United States.
125. At the Tribunal hearing, the applicant confirmed that she had returned to the United States and was there between April and June 2016. The Tribunal asked the applicant why she would return to the United States if her protection claims concerning [Mr A] and [Mr B] were true. The applicant said that she tried relocating within the United States and got a false sense of security. She thought she would be ok, but she was not which is why she left again. The Tribunal was not persuaded by the applicant’s broad reference that she was not safe during her return to the United States, given that her protection visa application form makes no reference to any specific instances of her not being safe during that time, and the fact that she disclosed she resided at one residential address located [in State 1], during that time, despite telling the Tribunal that she had ‘attempted to relocate’ within the United States during her last time in the United States.
126. When considered in combination with the other concerns that the Tribunal has about the truth of the applicant’s claims, the Tribunal is not satisfied that the applicant experienced past harm in the United States and is satisfied that her return to that country demonstrates that she faced no harm there.
Delay in application for a protection visa
127. The applicant first arrived in Australia [in] March 2016 and departed Australia [in] April 2016. She returned to Australia [in] July 2016 and has remained in Australia since that time. Since her last arrival in Australia, she applied for a tourist visa and then a partner visa. It was not until 30 January 2022 that the applicant applied for a protection visa.
128. Given that the applicant claimed that she left the United States in 2016 to flee from [Mr A], the fact that she delayed applying for a protection visa until approximately five and a half years after her last arrival in Australia suggested that the applicant was not genuine in her claims concerning [Mr A] and/or her father.
129. At the Tribunal hearing, the Tribunal noted the applicant’s migration history and asked her whether she only lodged the protection visa application as an alternative to achieve the residency she hoped to achieve through a successful grant of a partner visa. The applicant denied she had done so. She maintained that she had a genuine fear returning to the United States. She did not think it necessary to lodge a protection visa application because she never thought that her relationship with [Mr C] would end.
130. The Tribunal was not persuaded by the applicant’s explanation for the delay in applying for a protection visa for several reasons. First, a partner visa is contingent, in most cases, on the sponsor and the applicant still being in a relationship. This can be contrasted with a protection visa, which is dependent on no one other than the applicant. It makes no sense to the Tribunal that the applicant would take her chances to remain in Australia on a partner visa being contingent on another person when a protection visa would be available to her. Second, the applicant had already experienced refusals concerning her partner visa applications, as evidenced by the refusal to grant the combined partner visa on 18 April 2018 by the Department and again on 30 March 2021, as well as a decision by the Tribunal on [date] 2021 to affirm the decision to refuse to grant the partner visa. The Tribunal notes that the refusal of 30 March 2021 and the Tribunal decision of [2021] related to ‘character grounds’ which is separate from the issue of whether the applicant was in a relationship with [Mr C].
131. To the Tribunal’s way of thinking, the applicant’s delay in applying for the protection visa is telling. She claimed to have left the United States and arrived in Australia [in] July 2017 because she feared future harm there. Instead of lodging a protection visa upon her arrival, or shortly before her temporary visa was to expire on 29 September 2017, she went through a series of visa applications and was unsuccessful.
132. When considered in combination with the other concerns that the Tribunal has about the truth of the applicant’s claims, the Tribunal is not satisfied that the applicant experienced past harm in the United States and that she genuinely fears harm upon her return there. The Tribunal is satisfied that the protection visa was lodged not in connection with any protection concerns but was lodged because the applicant seeks a migration outcome that would allow her to remain in Australia permanently as an alternative to the residency that would have been provided through the successful grant of a partner visa.
CONCLUSION
133. The Tribunal is not satisfied for the reasons given above that the applicant is a witness of truth concerning her claims. She has a flexible approach to the truth and is not credible.
134. The Tribunal does not accept that she has been a victim of abuse from a person named [Mr A] and does not accept that there is any chance that she would be at risk of abuse from that person in the future. Likewise, the Tribunal does not accept that the applicant has been a victim of abuse from her father in the past and does not accept that there is any chance that she would be at risk of abuse from her father in the future. The Tribunal does not accept that the applicant would be at risk of psychological harm in the future.
Refugee
135. For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in the United States of America due to her race, religion, nationality, membership of a particular social group, or political opinion.
136. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
137. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to the United States of America, there is a real risk the applicant will suffer significant harm.
138. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
139. For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
140. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
141. The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

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

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

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

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

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

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

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

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

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

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

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

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

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

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

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

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

[2022] AATA 2449

1 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction