1415371 (Refugee)

[2015] AATA 3401

1415371 (Refugee) [2015] AATA 3401 (31 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415371

COUNTRY OF REFERENCE:                  India

MEMBER:Susan Pinto

DATE:31 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 31 August 2015 at 10:52am

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

1. The applicants are citizens of India. They are a husband and wife and their two children. The first, second and third named applicants arrived in Australia on Subclass 676 (Visitor) visas [in] June 2009. The applicants applied to the Department of Immigration for Protection visas [in] September 2009. The applications were refused and the first, second and third named applicants sought review of the decision with the Refugee Review Tribunal. The RRT affirmed the delegate’s decision. The applicants sought judicial review of the RRT’s decision and were successful. The application was remitted to a differently constituted RRT which again affirmed the delegate’s decision. Applications to the Federal Court, the Full Federal Court and the High Court were unsuccessful, as were applications to the Minister of Immigration pursuant to s.417 of the Migration Act 1958.

2. The [fourth named applicant] was born in Australia [in] 2013. [The child] is included in this application.

3. Following the decision in in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicants made further applications for Protection visas [in] October 2013. The applicant essentially claimed that as a member of Dera Sacha Sauda he has been attacked and harmed in India. The other applicants completed Part D of the application form, indicating that they were relying on their membership of the applicant’s family unit.

4. The delegate of the Minister for Immigration refused to grant the Protection visas [in] August 2014. The delegate was prepared to “give the applicant the benefit of doubt” and accepted that he was a member of Dera Sacha Sauda, “but only at grassroots level” and that he may have been involved in disturbances between Sikhs and members of the Dera Sacha Sauda on two occasions. The delegate did not accept that he had been personally targeted or singled out and was not satisfied he would be attacked or singled out in the future. The delegate also found that the applicant’s delay in leaving India was not consistent with his claim to fear harm in India and found that if he did not feel safe in his home area he could relocate to another part of India. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

5. The delegate assessed all the applicants against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the first, second and third named applicants only against the Complementary Protection provisions. The fourth named applicant has been assessed against both the Refugees Convention and the Complementary Protection provisions. 

   RELEVANT LAW

6. Section 48 imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

7. As indicated above, the first, second and third named applicants have previously been refused Protection visas in Australia. However, the visa application under review is a valid application because the applicants are considered ‘SZGIZ-affected’ as they have not left Australia since the final determination of their previous Protection visa application which preceded the Complementary Protection provisions. As the first, second and third named applicants have previously had their claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether they satisfy the requirements of s.36(2)(aa) and (c). However, the applicant’s young [child] has not been assessed under either the Refugees Convention or the Complementary Protection provisions. The Tribunal has, therefore, assessed the fourth named applicant against both the Refugees Convention and the Complementary Protection provisions.

8. The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer ‘significant harm’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

9. Subsections 36(2)(c) provides 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)(aa) who holds a protection visa. 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.

   CLAIMS AND EVIDENCE

   Application to the Department

10. When lodging the current application to the Department, the applicant stated that he speaks, reads and writes Punjabi and Hindi and he reads English. The applicant stated that he had [number] years of education in India. He stated that he was employed as a [occupation] and for a [company] prior to his arrival in Australia.

11. The applicant stated on the application form that he is a member of Dera Sacha Sauda (DSS) and believes in its principles and ideologies. Due to his support for the DSS he was threatened by militant groups such as Babbar Khalsa International, Damdami Taksal, Khalsa Action Committee and other groups to stop attending prayers and convert to the Sikh religion. In January 2009, the members of the Sikh fundamentalist organisation attacked his house. He fears that due to his affiliation with DSS he will face a real risk of harm from these organisations. The applicant fears he will be targeted and will face significant harm including torture, inhuman, degrading and cruel treatment at the hands of the Sikh extremist organisations.

12. The applicant also states that in addition, because of his extended stay in Australia, he will be perceived as a wealthy person and the Sikh extremist and criminal groups will target his family and extort money from him. He fears that if he and his family fail to comply with their demands they will be killed. He fears that the authorities in India will not protect him because they are corrupt and ineffective. The applicant states that he fears even if he moves to another part of India, the Sikh extremist groups will target them because of their continuous support to the DSS.

13. When the application was lodged by the applicant’s former agents, the submission provided stated that a detailed statutory declaration would be provided “shortly”. However, nothing further was provided.

14. The applicant was interviewed by the delegate [in] July 2014. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the record as set out in the delegate’s decision record is accurate.

    Application for review

15. Following the lodgement of the application to the Tribunal, the applicant’s representative provided a submission in relation to the applicant’s claims. The representative submits that the applicant has made the following claims:

    ·The applicant and his family are citizens of India. The applicant was born in [in a town in] Uttar Pradesh, India;

    ·The applicant is a member of the religious group, Dera Sacha Sauda (DSS);

    ·He joined the group after looking at their principles of humanity and the “oneness of all religions whilst living in your own religion”;

    ·The applicant states that some of the principles are that they do not take alcohol; they do not eat any form of meat or animal products; they avoid all types of corruption; they are truthful in their dealings with others; avoid bad company and render help to others where possible;

    ·The applicant states that there are 47 principles of the DSS but he cannot name them all by heart;

    ·The applicant states that the DSS and its leader have been accused of blasphemy and hurting the good name of Sikhs;

    ·There are many terrorist groups in Punjab, such as the Damdami Taksal, the Babber Khalsa International (BKI) which are targeting the DSS;

    ·The applicant was threatened by members of the Sikh association and militant groups, and told to stop attending prayers and convert to the Sikh religion;

    ·The applicant was present at an attack on a Dera [in] July 2007 at [location]. On that occasion, some 50 or 60 people attacked them when they were praying. The attackers were from the Sikh community;

    ·In January 2009, the DSS had a prayer meeting at the applicant’s house and they were attacked by the Sikhs. They started to throw stones at them and demanded that the prayers be stopped. Most of the DSS members escaped unharmed, but the applicant was warned that he will pay for refusing to leave the DSS;

    ·The applicant states that his wife was hysterical and she was afraid they will be seriously harmed; and

    ·The applicant has realised he will never be safe as he did not want to change his religion and he decided to run away.

16. In the submission the representative also addressed the issues raised by the delegate, stating that the applicant found the interview extremely difficult and was nervous and he knew why he became a member of DSS but had difficulty articulating it. The representative submits that the applicant is a “simple man” a [occupation] with no formal education and has lived his life in a small village. The representative submits that the contradictions, inconsistencies and omissions do not mean he lacks credibility. It is further submitted that the applicant’s claims cannot be remote when the delegate of the Minister acknowledges that there are many terrorist groups in Punjab which have orchestrated a campaign against the DSS and its head, and there are radicals who accuse of ‘blasphemy’ and of ‘hurting Sikh sentiments”. It is further submitted that the delay in the lodgement of the application is due to the fact that he applicant could not afford to seek immigration assistance when he first arrived in Australia.

17. The applicant appeared before the Tribunal on 19 August 2015 to give evidence and present arguments. The applicant’s wife and children did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent.

18. In a submission provided following the hearing, the applicant’s representative again submitted that the applicant is a member of the Dera Sacha Sauda and has participated in communal praying and organised prayer meetings held at his home and he was attacked on two occasions. It is again submitted that the applicant is a [occupation] whose knowledge is limited and he can only give a general account of his experiences. The applicant’s nervousness and his difficulties in elaborating on his religious faith and beliefs were apparent. It was submitted that during his presence in “our office” he was able to elaborate on his religious beliefs and practises. It is further submitted that the applicant’s [child] is currently being treated for a [medical condition] and he cannot take his family back to India amidst such uncertainty.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Are there substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that he will suffer significant harm?

19. The Tribunal has considered the applicant’s claims to fear harm in India. As indicated above, the applicant has claimed that he fears harm in India due to his membership of the Dera Sacha Sauda.[1] Having considered all of the evidence, the Tribunal does not accept that the applicant was a member of the Dera Sacha Sauda in India. The Tribunal acknowledges that the delegate, somewhat reluctantly, accepted that the applicant was a low level member of the DSS in India and this was also accepted by the previously constituted RRT, but not by the first Tribunal. However, as discussed during the hearing, the Tribunal is conducting another review in relation to the current application and is not bound by the findings of the delegate or any previous Tribunal. The Tribunal considers, having explored the applicant’s commitment to DSS in depth and having carefully considered that evidence, that the applicant is not a member of the DSS and was never involved in the DSS. In reaching this conclusion, the Tribunal has given careful consideration to the submissions and the claims that the applicant has been employed only as a [occupation] and he has no formal education. However, the Tribunal is not satisfied, even having regard to these factors, that the applicant was involved in Dera Sacha Sauda in India. The Tribunal is drawn to the conclusion that the applicant’s purpose in coming to Australia was to work [in] rural Australia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    [1] The Department of Foreign Affairs and Trade 2015, Country Information Report: India, 14 July has reported that the DSS is a non profit social welfare and spiritual organisation founded in 1948 and headquartered in Haryana.

20. The Tribunal firstly considers that the applicant’s evidence regarding his lack of involvement in the DSS in Australia is not consistent with his claim that he fled India due to his commitment to and involvement with that group. As indicated above, the applicant has claimed that he fled India because he could not be involved with DSS without fear of harm. During the hearing, the applicant was asked about his involvement with DSS in Australia in the six years he has resided in Australia. The applicant indicated that despite the fact he has been in Australia for some six years he has had no involvement in DSS in Australia. The applicant stated that although he has tried to find out about the DSS in Australia it is difficult to travel 600 to 700 kilometres. The applicant also told the Tribunal that he has been busy working as a [occupation] and living in a rural area of NSW which was several hours away from [the city] and other places where the DSS is active. He also has young children, but he will become more involved in the DSS in Australia when his children are older.

21. The Tribunal accepts that the applicant has been busy and has young children and has been working [in] rural NSW which is some distance from various places where the DSS is active in Australia.  Whilst the Tribunal also accepts that it is necessary for the applicant to work to support himself and his family, he has not claimed he came to Australia for this purpose. He has claimed to have fled India due to his involvement with the DSS and his inability to be involved in this organisation without fearing harm. Despite this, the applicant has taken no steps to be involved in any such activities in Australia at any time. The independent evidence indicates that the DSS has some 40 to 50 million members in various countries[2] and the DSS website for Australia indicates that it is involved in various activities in several parts of Australia, including in charities and environmental protection, and it regularly hosts activities in various parts of Australia.[3] The Tribunal accepts it is a distance of some 600 to 700 kilometres from [the town] to [the nearest city], where the DSS is active, but does not accept that the applicant’s complete lack of involvement in any of the activities of DSS in Australia, establishes that he has any genuine interest in or commitment to the organisation.  The Tribunal considers that his evidence in relation to this issue is inconsistent with his claimed commitment to the DSS which he has claimed caused him to leave India and seek Australia’s protection.

    [2] The Department of Foreign Affairs and Trade 2015, Country Information Report: India, 14 July has reported that the DSS has 40 to 40 million followers worldwide, including in Australia.

    [3] The website indicates that it has activities in various parts of Australia, including in Melbourne, Brisbane, Adelaide. These activities include tree plantation; blood donation; and various welfare activities.

22. In addition to the above, the Tribunal considers that the applicant was unable to articulate, in anything other than a superficial way, the importance of Dera Sacha Sauda to him and how he practises the principles of this in his everyday life. The applicant was asked, during the hearing, some basic questions as to the way he lives his life in accordance with the principles of the Dera Sacha Sauda. When asked if he could explain how he lives his life as a member of the DSS, the applicant stated that according to the guru they do not fight with anyone and they follow the same principles of the guru and do not say bad things about someone or abuse them. When asked again if he could explain how he lives his life as a member of the DSS, the applicant stated that they pray twice a day and they donate blood. When asked if he has donated blood, the applicant stated that he has not. When asked again if he could explain how he lives his life according to the principles of the Dera Sacha Sauda, the applicant stated that they plant trees and help poor people and he used to help the poor people in India. When asked again about how he applies the principles of the DSS to his everyday life the applicant stated that he prays, he helps poor people and if they need money or furniture he has helped them.

23. The Tribunal is not satisfied that the evidence as set out above indicates that the applicant has given any genuine consideration to living his life according to the principles of the DSS. The independent evidence indicates the DSS cites as its key principles secularism, equality, anti materialism, truth and faith, meditation, strict individual discipline, strict social discipline and hard work. The organisation has also undertaken a number of environmental and cleanliness campaigns throughout India and has been active in supporting disaster relief. The DSS has a number of principles which its adherents use as part of their everyday lives.[4] The website of the DSS also sets out a number of principles of the organisation and include, for example, no consumption of liquor or meant or egg, opposition to the dowry system; opposition to malpractice, bribery, theft, and lists 47 principles which include vegetarianism; serving humanity for at least 6 hours a week or 4 to 5 hours a day; touching elders feet; taking NAAM, the method of mediation, reciting NAAM before meals to obtain spiritual freshness; donating part of your income; donating blood, eyes or committing to donate your whole body; adopting humanity; equal status to males and females; mediation for half an hour or an hour every day. Although the applicant was able to say that one of the principles is to give blood and that he prays regularly and has helped the poor, his own evidence was that he has never given blood. Additionally, although he spoke about the charitable aspects of the DSS, his evidence as to how he contributes to society and performs charitable functions was vague and unpersuasive.

    [4] Department of Foreign Affairs and Trade 2015, Country Information Report: India, 14 July.

1. The Tribunal accepts that it is difficult to articulate particular beliefs and principles within the context of a hearing. The Tribunal also accepts that a hearing is a stressful situation, and the applicant was undoubtedly nervous. However, the Tribunal does not accept that the applicant’s evidence indicates that he has given any genuine consideration to how he lives his life in accordance with the principles of the DSS, and although he was given considerable opportunity during the hearing to articulate how he applies them in his everyday life, his evidence remained limited. The Tribunal formed the impression that the applicant was attempting to recall some of the principles of the DSS, but he was unable to articulate how he applies these principles in his everyday life because he does not in fact make any genuine efforts to apply them or to live his life in accordance with the beliefs of the DSS. The Tribunal considers, having regard to the information regarding the strict adherence by DSS members to specific principles, that a person who was genuinely committed to the DSS would have given considerable thought to the application of such principles in their everyday life. The applicant’s evidence was also that his wife is not a member of the DSS. The Tribunal further considers that in such circumstances it would be necessary to consider how to live one’s life in accordance with the principles of DSS in the context of family life. The Tribunal considers that the applicant’s evidence in relation to this issue, in addition to his evidence as to his lack of any involvement in the DSS in Australia, raises considerable concerns that he has manufactured the totality of his claims to be a member of the DSS.

2. In addition to the above, the Tribunal considers that the applicant did not exhibit anything other than a limited understanding of the principles and beliefs of the DSS. When asked about his claims to be a member of DSS and asked whether this is a religion the applicant stated that it is not a religion. When asked what type of organisation it is, the applicant stated that it is not a religion and they all come and pray together. When asked again if it is not a religion, if he could explain what it is, the applicant again stated that they all come together and pray and it is made up of all religions. When asked how a person becomes a member of the organisation, the applicant stated that it is a separate group and “dera” means truth or one god. It says all religions and they all come together and worship the one God. When asked what they believe in, the applicant stated that they believe in the Gita, in one God, in one religion and not doing bad things, and they do not ask for interest on a debt and they help the poor by donating. When asked if again if he could explain in further details some of the beliefs or principles of the DSS, and asked why he became interested in the DSS, the applicant stated that he likes the focus on the truth and their belief that all religions can be involved and the belief in one God and he also believes it has the “right guidance”. When asked for more details of the beliefs of the DSS, the applicant again referred to helping the poor. The Tribunal advised the applicant that there are some 47 principles of the DSS and it is having difficulty accepting that he is a member of the DSS, given his limited knowledge. The Tribunal queried how it can be satisfied he was involved with the DSS and advised the applicant that the principles include opposing the dowry, not eating meat, not drinking alcohol, touching elders’ feet. The applicant then asked the Tribunal whether he could provide more details at which point the applicant referred to the dowry system, not eating meat, loving children, not lending or borrowing at a high interest, touching elders’ feet and praying to God. When asked why he needed to be prompted and he has simply recited what the Tribunal had told him, the applicant stated that he has said them at a previous hearing.

3. The Tribunal accepts that the applicant has been employed as a [occupation], but does not accept he has no formal education, given that he has provided details of [number] years of education on the application form. As stated above, the Tribunal acknowledges that the hearing is a stressful situation and the applicant was nervous in such an environment. However, the Tribunal took considerable care to ask basic questions and reminded the applicant on several occasions that it was not asking him to recite the 47 principles, but to discuss some of them and how he applies them in his everyday life. The Tribunal is satisfied that the applicant was given considerable opportunity to explain how he lives his life in Australia as a member of DSS; how he did so in India; and his understanding of the beliefs and practises of DSS. The Tribunal considers that the applicant’s evidence was extremely limited and not consistent with his claims to be a committed member of the DSS in both Australia and India. The Tribunal also considers that the applicant’s lack of involvement in the DSS in Australia is indicative of the fact that he has no genuine interest in the DSS and he has manufactured his claims relating to the DSS. As stated above, the applicant’s evidence in relation to this issue was vague and unconvincing. The Tribunal gives no weight to the submission that the applicant was able to articulate the principles in the representative’s office.

4. The Tribunal does not accept, therefore, that the applicant was involved with the DSS in India or that he was ever harmed as a result in 2007 or in 2012. The Tribunal also does not accept the applicant’s claims at the hearing that persons are continually coming to his home asking his mother about his whereabouts and the Sikh community in India has told him that he must leave the DSS and only be involved in Sikhism The Tribunal does not accept that anyone has any interest in the applicant such that they are coming to his home asking about his whereabouts. The Tribunal has not accepted that the applicant was involved in the DSS in India and does not accept, therefore, that some six years later persons would be coming to his home asking about his whereabouts and considers that this claim is indicative of the fact that his claims to have been sought by the DSS have been manufactured.

5. Although the Tribunal has not accepted that the applicant is or was a member of the DSS, the independent evidence does not, in any event, support the applicant’s claims that such persons are being targeted in India. The independent evidence indicates the independent evidence indicates that a hundred persons were killed and there were widespread clashes between Sikhs and DSS followers in 2007 and 2008.[5]  However, as discussed during the hearing, of the sources consulted by the Tribunal[6] the evidence indicates that clashes have been scarce and there is no evidence indicating that there have been clashes against Sikhs and DSS followers or that DSS followers have been subject to mistreatment. [7] As also discussed during the hearing, the most recent Department of Foreign Affairs and Trade, refers to the DSS but does not include any reports of any harm inflicted against its members. The Tribunal is not satisfied, therefore, that even if the applicant was a member of the DSS that there is a real risk he would suffer significant harm for this reason upon his return to India.

   [5] Baixas, L and Simon, C. 2008, ‘From Protesters to Martyrs: How to Become a True Sikh’, South Asia Multidisciplinary Academic Journal, Special Issue – No.2, ‘Outraged Communities: Comparative Perspectives on the Politicization of Emotions in South Asia’.

   [6] DIBP COIS 2013, Issues Paper: India: Sikhism, Caste & Deras, September. The Tribunal also consulted the CISNET website and conducted Internet searches.

   [7] India Today reported that on 25 November 2012 at least 12 people were injured and six vehicles set alight in violence between DSS followers and Sikhs in Haryana. A further report, dated 26 November 2013, refers to a clash between DSS followers in Moga in the Punjab – Maan, S 2013, ‘Dera Sacha Sauda followers and radical Sikh organisations clash: Five Dera Followers injured, Hindustan Times, 26 November.

6. When asked during the hearing if there is any other reason he could not return to India, apart from his fear due to his involvement with DSS, the applicant stated that he has no other reasons. When reminded of his claim relating to the extortion, the applicant stated that there is a lot of terrorism and extortion within the Skih community, but his family is poor and they have no money. The Tribunal considers it evident that the applicant had forgotten his claim that he would be the subject of extortion due to the perception that he has money due to his time in Australia. The Tribunal does not accept that there is a real risk that the applicant will suffer harm for this reason if he is removed from Australia to India. 

7. Having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment.

8. The Tribunal has had regard to the applicant’s claims that the fourth named applicant is undergoing treatment for a [medical condition]. The Tribunal has not been provided with any further evidence in relation to this issue, but accept that the applicant’s [child] is undergoing such treatment. The Tribunal has no further evidence regarding the severity of this condition and on the evidence before it is not satisfied that [the child] will be unable to obtain treatment in India for this condition or that [the child] will suffer significant harm for this reason. As indicated above, no specific claims have been made by the second or third named applicants. The Tribunal is, therefore, also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second, third and fourth named applicants being removed from Australia to India that there is a real risk that the second, third or fourth named applicants will suffer significant harm.

9. As indicated above, the fourth named applicant has not been assessed against the Refugees Convention. The fourth named applicant’s application was made on the basis of [the child’s] membership of [the] father’s family unit. Although no claims were previously made on [the child’s] behalf it has since been claimed that [the child] suffers from a [medical condition]. As indicated above, the Tribunal has not accepted that [the child] will suffer significant harm for this reason and for the same reasons the Tribunal is not satisfied that there is a real chance that [the child] will suffer serious harm for this reason. Accordingly, the Tribunal finds that the fourth named applicant does not have a well founded fear of persecution for a Convention reason if [he/she] returns to India now or in the reasonably foreseeable future.

   CONCLUSIONS

10. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa). Nor is the Tribunal satisfied that the fourth named applicant satisfies the criteria in s.36(2)(a). There is no suggestion that any of the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(aa) or s.36(2)(a) and who holds a protection visa. Accordingly, the applicants does not satisfy the criterion in s.36(2).

    DECISION

11. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

12. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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 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 the applicant.’

    Complementary protection criterion

13. The complementary protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.