1917076 (Refugee) [2023] AATA 2292 (11 April 2023)

Last Updated: 1 August 2023

1917076 (Refugee) [2023] AATA 2292 (11 April 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Nkem Joseph Akachili (MARN: 1571682)

CASE NUMBER: 1917076

COUNTRY OF REFERENCE: Tanzania

MEMBER: Wendy Banfield

DATE: 11 April 2023

PLACE OF DECISION: Canberra

DECISION: The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 11 April 2023 at 3:15pm

CATCHWORDS

REFUGEE – protection visa – Tanzania – particular social group – women opposed to forced marriage – female genital mutilation – threats from extended family – torture – internal relocation – state protection – request for Ministerial Intervention – Australian born child – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Tanzania, applied for the visa on 25 February 2014 and the delegate refused to grant the visa on 27 June 2019.
3. On 11 May 2022 the applicant’s representative advised the Tribunal that the applicant waived her right to a hearing and requested a decision be made on the papers. The Tribunal was advised the applicant would seek Ministerial Intervention.
4. The applicant was represented in relation to the review.

CONSIDERATION OF CLAIMS AND EVIDENCE

Refugee criteria

5. 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, the applicant 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.
6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Complementary protection

8. 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 a protection 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 the applicant 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’).
9. 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.

Applicant's Identity and Country of Reference

10. The applicant stated in her application for a protection visa that she was born on [date] in Tanzania. The applicant provided a copy of her Tanzanian passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
11. The Department assessed whether the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. It determined that although the applicant’s mother has [Country 1] citizenship, the applicant herself would be required to apply citizenship. Therefore, it was found the applicant does not currently have an existing right to enter and reside in a safe third country including [Country 1].
12. Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Tanzania and as such her protection claim will be assessed against Tanzania as the country of reference and 'receiving country' respectively.

Migration History

13. According to Departmental records, the applicant arrived in Australia [in] January 2010 on United Republic of Tanzania passport [number] as the holder of a [Student] visa.
14. On 29 August 2011 the applicant applied for a [Student] visa, which was granted on 12 September 2011. The applicant travelled to Tanzania [in] December 2011 and returned to Australia [in] January 2012.
15. On 25 March 2013 the applicant applied for a further Student visa, which was granted on 26 March 2013. The applicant travelled to Tanzania [in] October 2013 and returned to Australia [in] November 2013.
16. On 25 February 2014 the applicant lodged the current application for a Protection (Class XA) visa and was granted an associated Bridging A visa.

Claims for protection and supporting documentation

17. The applicant first submitted claims for protection when she made an application to the Department on 25 February 2014. The Department’s decision record was submitted to the Tribunal by the applicant. The applicant’s claims were summarised in the Department’s reasons for refusal as follows:
    • She belongs to a social group of women in Tanzania who strongly oppose forced marriage and female genital mutilation (FGM). Her mother decided to send her to Australia to protect her from imminent harm as the only female in the family. She left Tanzania to study and to apply permanently as a skilled migrant. However, the problem of FGM and forced marriage has constantly remained and as she is significantly opposed to it she will have problems if she returns to Tanzania.
    • She has considered leaving Tanzania many times before because she was being subjected to torture for refusing to undergo FGM and forced marriage.
    • If she returned to Tanzania this cultural practice would subject her to cruel, degrading and inhuman treatment and she would be punished severely for not undergoing it even though FGM is illegal.
    • The applicant has experienced harm when she was [age] years of age. She was returning home from boarding school and men from her Mara tribe accompanied by an elderly woman who force women of her age or older to undergo FGM came over to their family home. As her father passed away she had no male protection and they tried to grab her and take her with them to have the procedure performed but she resisted and fled her home for nearly 20 days. When she returned home they came again and subjected her to further harassment. From that moment onwards she has planned to leave Tanzania forever and only to return when she has citizenship of another country that is “too powerful” for her attackers. She did not seek assistance because her attackers are close relatives and are meant to act as her guardians since her father passed away.
    • She fears forced FGM and marriage to an older man not of her choice and against her will especially because of her age and as punishment for having dodged “this so called rite of passage”.
    • The applicant’s mother and the rest of her sisters are not safer either. Her mother’s brothers-in-law (the applicant’s uncles) demand that she allows them to deal with the applicant and her sisters as their culture demands and they allege that the applicant’s mother is the one obstructing them from doing so. Consequently, her mother is being subjected to cruel and unjust treatment by these people she expects to be providing her with protection.
    • Her father’s family harasses her mother for sending her away from home. Her mother has had to relocate several times due to a personal threat to her life and she fears the same will happen to her.
    • The rest of her extended family members are threatened by the fact that she has greater exposure to modernity, equity and fairly high standards while she has been studying in Australia that they are planning to harm her so that she is not able to influence others.
    • If she returns to the Mara region there will be girls or women who will exert enormous pressure on her to get cut. They will vilify her and seek to victimise her if she refuses to get cut and impute a stigma on her for refusing to do so.
    • She fears harm from relatives on her father’s side and women close to her mother but secretly support such practices. These people believe it is their tradition and she must undergo this practice because she managed to escape it years ago and she would be a bad influence to the younger generation having been exposed to life in Australia.
    • Even though FGM is illegal in Tanzania if she is taken captive by these people she will be forced to undergo this practice. The applicant maintains that the Tanzanian government is less likely to protect the powerless and most vulnerable people in society. The police and court support such rogues, are not trustworthy and accept bribes and her attackers are well connected with the local police with whom she would be seeking protection.
    • She is afraid of making another attempt to return home after the most recent one where she lost a brother who would be her other protector. She would be a woman at risk because her father’s male relatives are among those remaining at home harassing her instead of providing protection.
    • Although the applicant is of marriageable age her paternal uncles still require her to marry a person of their choice and at worse, they insist she must undergo FGM, which has led to a massive conflict between her uncles and mother whose religious beliefs and the applicant’s operate contrary to their desires.
    • Relocation would not help with her situation because her attackers are close relatives and could easily locate her and can perform FGM anywhere in the country since she belongs to the Mara tribe. It is also not possible as her attackers would be able to find out her whereabouts and now she has a baby it would be difficult for her to keep relocating.
18. The applicant submitted evidence to the Department about Tanzania and about her specific claims. She attended an interview with a Departmental delegate and provided additional information which has been considered in the Tribunal’s decision. No further evidence was submitted to the Tribunal.

CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Assessment

Refugee criteria

20. The applicant claims to be member of a particular social group, that being women in Tanzania who strongly oppose forced marriage and FGM. The applicant claims she would be at risk of a forced marriage, and FGM by her extended family members in Tanzania. She claimed that since her father and a brother have passed away, she has no male protection. The applicant claimed she would be a woman at risk if she returned to Tanzania because her father’s male relatives who would force her into a marriage and force her to undergo FGM.
21. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    ... First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". ...

22. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
23. The applicant claims she fears having to undergo a forced marriage and FGM if she returns to Tanzania. The applicant declared she was born in Dar Es Salaam, a major commercial hub in Tanzania and lived there until 2010. However, she also claimed her family origins are in the Mara region on the other side of the country where relatives of her father reside and where FGM is more prevalent. A woman with links to an area of Tanzania where illegal practices such a forced marriage and FGM could be carried out may constitute a particular social group for the purpose of the Refugees Convention. The Tribunal accepts the applicant’s overall profile indicates she is a member of a particular social group in Tanzania, that being a single woman with connections to the Mara region of the country. However, taking into consideration relevant country information together with the applicant’s age, profile, circumstances, history, experiences living in Tanzania and the information provided to the Department, the Tribunal does not accept she is at risk of FGM or forced marriage.
24. In her evidence to the Department the applicant claimed she was without male protection in Tanzania. She declared her father had been against FGM and forced marriage but had passed away in 2003. The Department found the applicant gave contradictory evidence that her father’s family tried to force her to undergo FGM in [an earlier year] because she had no male protection, when in fact her father would have still been alive at the time. The Department found the applicant did not provide a plausible explanation for how she avoided FGM and forced marriage by her father’s family if they were serious about making her to undergo those practices, particularly after he allegedly died in 2003. The Tribunal agrees the applicant’s evidence does not give a satisfactory account of how she was able to live in Tanzania well into adulthood without being subjected to forced marriage and FGM.
25. Recent country information indicates the prevalence of FGM has been decreasing in Tanzania year by year since 1996.^[1] Studies by non-governmental organisations indicate the prevalence is currently 10%, down from 17.9% in 1996. While reports suggest the decrease may in part be due to under-reporting of FGM by the women surveyed, it does reflect a true decrease in the practice,^[2] In addition, statistics that are available indicate the practice is more likely to occur when girls are under the age of 14 and amongst those from rural areas.^[3]
26. The applicant is currently [age] years old and has a son in Australia from a relationship onshore. According to her letter addressed to the Minister dated 19 April 2019, the applicant also has a son who lives with her mother (the child’s grandmother) in [Country 1]. The applicant has not resided in Tanzania since she arrived in Australia as a student. Her migration history indicates she returned to her home country several times for short periods but has otherwise been living onshore. The applicant is an independent adult with children who has lived away from her home country as a student and temporary resident in Australia. She was born and lived in an urban area of Tanzania. There is nothing to indicate she would need to associate with relatives of her father against her wishes, and the Tribunal is not satisfied male relatives in Tanzania would seek to harm her for the reasons she claims, or any other reason.
27. The applicant claimed she belongs to a social group of women in Tanzania who strongly oppose forced marriage, she was subjected to torture for refusing forced marriage and her paternal uncles still require her to marry a person of their choice. Country information indicates females affected by forced marriage are primarily minors and young adults. It is usually an arrangement undertaken by the young woman’s parents or relatives.^[4] Based on the applicant’s current profile as a woman of mature age with children who lived primarily in Dar Es Salaam in Tanzania, the Tribunal is not satisfied the applicant is at risk of her male relatives attempting or forcing her to undergo a marriage against her wishes.
28. As part of her claims, the applicant declared her extended family members are threatened by her exposure to the conditions and standards she experienced while studying in Australia and they are planning to harm her so that she is not able to influence others. The Tribunal does not find the applicant’s claims in this regard to be credible. She did not provide sufficient details to support this claim or explain how or why this would occur. The applicant stated she may be subjected to harm if she returned to the Mara region. However, as she was born and resided in Dar Es Salaam, there would be no reason for her to travel to another region of Tanzania if she chose not to. The Tribunal is not satisfied the applicant would be harmed by her relatives for the reasons claimed.
29. To satisfy the refugee criteria, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
30. Whether an applicant is a person in respect of whom Australia has protection obligations is assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. Based on the evidence and the applicant’s circumstances, the Tribunal is not satisfied the applicant has a well-founded fear of persecution if she returns to Tanzania now or in the reasonably foreseeable future.
31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

Complementary protection

32. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
33. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
34. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
35. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
36. The applicant claims to be at risk of FGM and forced marriage from her father’s family and other relatives. The Tribunal is not satisfied the applicant faces a real chance of serious harm in the form of FGM or forced marriage or for any other reason on return to Tanzania now or in the foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a real chance of being subject to significant harm should she return to Tanzania. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations.
37. 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 criterion in s 36(2).

Ministerial Intervention

38. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. In her evidence to the Tribunal, the applicant submitted a letter to the Minister seeking intervention in her case. The letter states the applicant is concerned for her minor child who was born in Australia on [date]. The applicant explains hers and her child’s circumstances in Australia including the circumstances of the father, and the child’s other relatives.
39. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

DECISION

40. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Wendy Banfield
Member

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^[1] 28 Too Many, FGM in Tanzania, Country Profile Update, July 2020.
^[2] 28 Too Many, FGM in Tanzania, Country Profile Update, July 2020 p.8.
^[3] 28 Too Many, FGM in Tanzania, Country Profile Update, July 2020 p.9.
^[4] US Department of State, 2021 Country Reports on Human Rights Practices: Tanzania, Bureau of Democracy, Human Rights and Labour.