1518018 (Refugee)

[2017] AATA 1047

1518018 (Refugee) [2017] AATA 1047 (20 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1518018

COUNTRY OF REFERENCE:                  India

MEMBER:C. Packer

DATE:20 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 June 2017 at 11:09am

CATCHWORDS
Refugee – Protection visa - India – Religion – Hindu – Relationship with Muslim man – Fears forced marriage to Hindu man – Divorced woman in India – Social stigma – Can relocate

LEGISLATION
Migration Act 1958, ss. 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), (c), 65, 424, 438, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a woman aged [age], born in India and a citizen of India.

2. The applicant first arrived in Australia [in] December 2008, as a holder of a Student visa, and had travelled on an Indian passport issued [in] 2008 and valid to [2018].

3. [In] January 2015 the applicant applied for a Protection (Class XA) visa.

4. The applicant did not attend an interview with a delegate of the Minister for Immigration.

5. [In] November 2015 the delegate refused the application under s.65 of the Migration Act.

6. On 28 December 2015 the applicant applied for review of the delegate’s decision.

7. On 8 March 2017 the applicant attended a Tribunal hearing.

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

1. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing.

2. In the written application, the applicant stated that she was born and raised in [Punjab] state in India, where her parents continue to reside. She is a Hindu. [In] July 2008 she married a Sikh, [Mr A] in a Sikh ceremony. The couple then travelled to Australia. [In] December 2008 she arrived in Australia on a Student visa, together with the husband as a student dependent. She claims she separated from her abusive husband within [days] of entering Australia, and that they divorced [in] January 2013. At the hearing the applicant said she resides in [City 1] with her sister and [relative], and she does not work or study.

3. The applicant’s protection visa application showed travel to India between [March] 2012 and [April] 2012.

Summary of claims

1. The applicant claims that:

   ·    In Australia in 2009 she met [Mr B], a Muslim Pakistan national. At times he assisted her when she had difficulties with the husband. They became good friends and socialised together, and [in] August 2010 the couple expressed their love for each other and started dating.

   ·    [In] March 2012 she travelled to India to attend a [wedding]. During this trip she told the parents about her relationship with [Mr B], but they did not accept the relationship. They insisted she become engaged to a Hindu man and locked her in a room. She phoned the local police [in] April 2012 to complain that the parents had threatened to kill her if she married ‘her beloved Pakistani friend’. A copy of a Police file note is provided in support.

   ·    She returned to Australia [in] April 2012. After she returned to Australia she decided to continue the relationship with [Mr B] and informed the parents of this. In India, the parents disowned her publicly and ceased their financial support. A copy of the parents’ Public Notice in an Indian newspaper in 2013 (setting out why they had disowned the applicant) is provided in support.

   ·    In India the parents signed an affidavit dated [in] April 2013 that says they disown her. Additionally, in the affidavit the parents claim that after the applicant returned to Australia she failed to return gold ornaments and [amount] dollars as she had promised, and so they intend to start an action under the Indian Penal Code. A copy of the parents’ affidavit is provided in support.

   ·    [Mr B] while driving [had] died in a motor vehicle accident in [City 1] [in] July 2016.

2. The applicant claims she fears to return to India as:

• Society in India will tease her because she is divorced and as she had had a live-in relationship with a Muslim in Australia.

• The parents will pressure her to have another arranged marriage.

• If she goes to live away from the parents to another place in India she will appear to be a single woman living alone and so vulnerable to predatory men.

Evidence

1. The evidence before the Tribunal includes the following material:

• The applicant’s Protection visa application form lodged [in] January 2015, which includes typed reasons for seeking protection in Australia.

• Passport pages.

• The Protection visa decision record (‘delegate’s decision’) dated [in] November 2015, which is the subject of this review.

• The application for review, which has attached to it a copy of the delegate’s decision.

• Documents from India- pages of Indian newspaper (some illegible) of [date] April 2013; parents’ Public Notice in the newspaper; parents’ affidavit dated [in] April 2013; handwritten note stamped “[title deleted]’ and English translation.

• Provided post-hearing: two photos showing [Mr B] and the applicant; a statement dated [in] March 2017 by a friend.

1. The applicant appeared before the Tribunal to give evidence and present arguments, on 8 March 2017. The applicant spoke fluent English and during the hearing she did not tell me she had any difficulties with our communication. At the start of the hearing I asked whether she was well and able to talk about her story, and she stated she was. During the hearing she appeared to fully understand questions and she gave coherent answers and explanations. I assess that she was competent to give evidence and had a full opportunity to put forward her story and arguments.

2. At the hearing I indicated I would provide her a week after the hearing in which to provide any additional information.

3. The Department attached a notification under s.438(1)(b) of the Act, stating that information had been given in confidence, and that the Tribunal should not disclose it to relevant parties without appropriate consideration. The certificate referred to folios 72 to 77 of the Department’s file. In an email on 10 March 2017 I advised the applicant of the existence of the certificate, and my satisfaction that the certificate was validly issued due to the confidential third party information. I explained the [folios], however, the folios and the information in them were not relevant to the review- ie whether she was a refugee or owed complementary protection. Despite the natural justice opportunity she did not make any comments in the time provided.

Assessment of claims: credibility

1. The applicant claims to be a national of India. She has an Indian passport. All the available evidence, including the applicant’s oral evidence and familiarity with India, supports her claim to be an Indian national. India is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds.

The relationship with [Mr B]

1. The applicant’s narrative had been centred on her claimed live-in relationship in Australia with [Mr B], a Pakistani national. At the hearing the applicant claimed that they had a strong relationship before she went to India in 2012, but then they had a pause after she returned to Australia, until the relationship recommenced and they started living together in 2013, and from 2013 they always lived together. However, the applicant stated that the relationship was ended when [Mr B] was killed in a motor vehicle accident in [City 1] [in] July 2016. At the hearing the applicant stated that there were newspaper reports concerning [Mr B]’s motor vehicle accident and death, and after the hearing I sighted such a report. I accept that [Mr B] was killed [in] July 2016.

2. At the hearing the applicant’s evidence was also that they were in a de facto relationship at the time of his death even though they were not living together. She explained that in March 2016 her sister and [relative] had moved in to live with her, and so [Mr B] largely moved out from April 2016. At the hearing I discussed my concerns as to whether they had ever been in a close live-in relationship. At the hearing I pointed out that she had provided scant evidence of the claimed live-in relationship- beyond some changes of address with the Department. She agreed and said they were not public and did not socialise their relationship. Nor were they open on social media. She said they did not sign a lease together as he had no payslips as a [occupation]. She said she had no documentary evidence concerning him or his death or his family at all, because his relatives and friends took over when he died. I pointed out that for a friendship/relationship that started in 2009 that seemed quite a number of years- being friends, dating, living together- for there to be no documentary evidence. I provided her with time after the hearing to provide any additional information to support her case.

3. After the hearing the applicant provided two photos that ostensibly showed them together- one showed them having dinner at a restaurant, and the other posing together in a house. I accept the photos show that the applicant and [Mr B] knew each other although there is no indication as to when the photos were taken. Also provided was a friend’s statement dated [in] March 2017 that stated: he met her partner many times; he invited them to his place; he believed they were in a genuine relationship. The statement lacks detail and appears to have been cursorily prepared and I give it little weight. In sum, there is scant evidence contemporaneous with the claimed long-standing relationship as live-in partners that support the applicant’s claim they were ever in such a close relationship.

4. At the hearing I asked about [Mr B]’s travel and the applicant stated he had travelled back to Pakistan every year in December; he last travelled in December 2015; and he had not otherwise travelled outside of Australia. However, as I put to her, his movement records show that he also travelled offshore in May-June 2015 and she would have known about his travel had they been living together and/or in a close relationship. She made no comments, and when I put to her the information following the s424AA procedure she made no comments. She did not seek any additional time to comment but I pointed out that she had a week after the hearing to provide any additional information. In sum, [Mr B]’s travel offshore in mid-2015 was significant and at a time when she said they were in a live-in relationship. Her lack of knowledge of his travel at this time does not support her narrative and evidence about the claimed relationship.

5. The applicant stated she had not had a relationship since [Mr B]’s death and even that she does not think she could go with anyone. But as I discussed with the applicant at the hearing, the Department had undertaken a field visit to her home [in] August 2016 and the key points from the summary of the visit are: she had been interviewed with ‘her boyfriend’; she became distressed when the officers advised the man would be detained; she stated she would return to India with the man, and repeatedly said “We will return to India, it will be fine.” The applicant replied that she and the man had not been in a relationship- they just shared accommodation. When I queried why then did she speak about going with him to India to live, she replied he was looking after her and the sister as [Mr B] had died, and she thought they may be out on the street. When I put to her the information following the s424AA procedure she stated that the man was sharing with her at the time and they helped each other. The applicant did not deny, however, that she had acted as if she was in a relationship with the man, and this is strongly shown by the officers referring to her ‘boyfriend’, and that she said she would go to India with the man. In sum I reject her explanation that she falsely held herself out as having a strong relationship with the man the subject of the Department’s field visit in the way that she did, merely in an attempt to help a flatmate.

6. In sum, I find that the applicant and [Mr B] were not in a de facto relationship at the time of his death in July 2016 and I reject her evidence that they continued to be in a de facto relationship despite not living together. I find that they were not in a de facto relationship at the time he travelled offshore in May-June 2015 and indeed, her lack of knowledge of this trip leads me to find they were not even close during and after this time. I find the applicant is not a credible witness. In light of the foregoing I am not satisfied that the applicant and [Mr B] were ever in a de facto relationship or that they started dating from [August] 2010 as she claims.

The occurrence [in] April 2012

1. A central claim of the applicant is that her parents and in particular the father are traditional Hindus who want the family to follow traditional Hindu customs. If she returns to India the parents will pressure her to have another arranged marriage, and harm her if she does not comply with their arrangements. She points to the parents’ conduct when she was last in India to support her claim.

2. [In] March 2012 the applicant travelled to India to attend a [wedding]. In the applicant’s narrative, during this trip she told the parents about [Mr B], but they did not accept the relationship. They insisted she be engaged to a Hindu man and locked her in a room. She phoned the local police [in] April 2012 to complain that the parents had threatened to kill her if she married ‘her beloved Pakistani friend’, and a copy of a Police file note is provided in support.

3. However, I have strong concerns with her narrative and evidence about this occurrence:

• At the hearing she at first described how the parents took her to a place to get engaged with a Hindu man, but she refused to get engaged and so was beaten. The parents locked her in ‘my room’ and that is when she phoned the police to lodge a complaint against the parents. I confirmed with her that she had been locked in her room and that there was a landline in ‘the bedroom’. But later in the hearing when I pointed out that the police station she claims to have phoned was a very long way from the family home- and showed her a map- she stated that was the area where she had been taken and so she had phoned the nearest police station. When I pointed out that earlier she spoke of being locked in her bedroom, she stated she had been locked in a room in a building that was like a hall, and when I said that is inconsistent with what she had earlier said she merely agreed. In sum, the applicant’s evidence concerning a significant detail of her narrative- where she was locked up by the parents- changed as I examined her evidence.  

• As I pointed out, she actually flew out that same day. The applicant agreed and said she pleaded with the parents to let her return to Australia and said she would give in, and so they promptly drove her on to the airport. However, I find unpersuasive her claim that all of these events happened on the very day she was flying out and that the parents who had gone to the serious lengths of locking her up then released her and drove her to the airport merely because she begged and agreed to comply with their wishes in the future.

• As I queried, she claims the parents took her to get engaged with a Hindu man but how could she get engaged when she had not yet divorced her husband. She then replied the parents just intended for her to be bound with the man. In sum, I consider being ‘bound’ is quite different to being engaged, which she had consistently said to that point, and I find that the applicant changed her evidence as I examined it. I also find unpersuasive her evidence that the parents sought to arrange a traditional marriage with a Hindu man by seeking to engage or bind them when she was still in a marriage with a Sikh.

1. In sum, my strong concerns lead me to reject her narrative and evidence about this claimed occurrence. I find unpersuasive her evidence that the parents planned to progress a traditional Hindu marriage by ‘binding’ her to a Hindu in a hall when she was still married. I also find unpersuasive her evidence that all of this took place on the day that they were driving to the airport for her flight out. The police record of a phone call may show the applicant phoned that distant police station, but I give no weight to the contents of the phone complaint she made. All of this, together with her changeable evidence concerning where she was locked up, lead me to find the story has been fabricated, and I find the applicant is not a credible witness.

The documents from India

1. Other elements of her narrative and evidence cause me concern. At the hearing I discussed the documents from India she had provided- the pages of an Indian newspaper (some illegible) dated [in] April 2013, and the parents’ public notice in the newspaper. The public notice, in English, indicated the applicant wanted to bring shame on the family by marrying a Pakistani Muslim and so the parents had disinherited her. As well, the parents’ statement dated [in] April 2013 also indicated she was disinherited and went on to state she had taken jewellery and cash to Australia ‘by saying that she will return the same when she reaches Australia’, but as she failed to return it all they intended to lodge a criminal complaint with the police. The applicant’s evidence was that in Australia she had needed funds and as the parents did not want to send her any money, they prepared the public notice and statement and sent her copies. When I pointed out the documents appeared self-serving, the applicant discussed in greater detail how she had told the parents that the Department had asked for evidence of her funds such as bank statements, but the parents refused to send bank statements, so instead they sent the documents to her, so that she could provide to them to the Department. She agreed that is also why they put the public notice in the newspaper, so that she could say to the Department that her parents were no longer supporting her.

2. In light of her evidence I conclude that the parents agreed to prepare the documents/evidence in India and then to send the evidence to the applicant, so that she could submit the evidence to the Department. I conclude they did this to assist the applicant in her dealings with the Department. The assistance of the parents in this way is inconsistent with their statement where they say they had severed all ties with her: “She is no more our daughter and we sever our all relations and ties with our said [daughter]”. Nor do their helpful actions support the applicant’s narrative that they prepared the public notice out of fury with the applicant because of her relationship with a Muslim- in light of the applicant’s evidence they lodged the public notice to make evidence that would assist the applicant in her migration matters. 

3. As well, at the hearing the applicant gave her parents’ address that she said was the same as the address in her passport. She stated that her sister was in contact with the parents and that she spoke to them on the phone on occasion. However, the parents used a different residential address in both the public notice and affidavit. When I pointed this out to the applicant she stated perhaps they had moved. However, as I discussed with her, I disbelieve that the parents changed addresses after the applicant’s 2012 visit without the applicant knowing. She would have found this out from the sister in Australia who maintained contact with the parents or from the parents with whom she had conversations. Indeed, when the parents sent the public notice [in] April 2013 and affidavit [in] April 2013 to the applicant she would have seen the different address.

1. Taking all of my foregoing concerns together, I find that the documents/evidence were concocted by the parents to assist the applicant and I give no weight to their content. I do not accept that the parents genuinely accused the applicant of taking cash and jewellery to Australia and then failing to return them, beyond claiming that in the affidavit.

Her travel to India

1. The applicant is an Indian national and she has an Indian passport valid to [2018]. She will be able to return to India and as I indicated to her, country information[1] shows that returning as a failed asylum seeker would not cause her any difficulties in India. She would then be able to travel to her home area- [Punjab] state in India, where her parents continue to reside.

Her claims of harm in India

[1] DFAT Country Information report India 15 July 2015

1. In light of the foregoing, I find that the applicant is not a credible witness and I disbelieve her narrative. I do not accept that the applicant and [Mr B] were dating from [August] 2010 as she claims, or living together from 2013. I accept they knew each other but I am not satisfied their friendship/relationship was significant or could be characterised as a de facto relationship. I do not accept that whatever friendship/relationship she had with [Mr B] caused the parents any concern, even if they knew about it. I find that when the applicant returned in 2012 for [a] wedding she did not tell the parents she would marry [Mr B], nor did the parents threaten to kill her, nor did the parents lock her in a room and insist she become engaged to a Hindu man. I find that the applicant made the phone call to a distant police station for the purposes of concocting evidence, and that the parents concocted the documents/evidence they sent to the applicant merely to assist her in her migration matters. I give these documents no weight. I do not accept that the parents or anyone-else in India will seek to harm the applicant because of her friendship/relationship with [Mr B] in Australia.

2. At the hearing the applicant claimed that society in India will tease her and people will talk about her because she is divorced and as she had had a live-in relationship with a Muslim in Australia. But I do not accept she was ever in a live-in relationship with [Mr B], and anyway whatever friendship/relationship she had with him is now years in the past. It is unlikely that anyone in India knows about the applicant’s past friendship/relationship with [Mr B] which was not significant, but even if some people do know, in light of the shallow nature of the past friendship I do not accept this will lead her to be harmed in the reasonably foreseeable future. I acknowledge the applicant is a divorcee and as I indicated at the hearing, country information shows that in Indian society she will likely be teased and talked about, as she claims, because of this. My comment encompassed reports[2] that show widows, divorced and separated women can face rejection by society. However, I do not accept this rises to the level of persecution.

   [2] UK Home Office Country Information and Guidance India: Women fearing gender-based harm/violence, April 2015 at 2.7

3. The applicant claims that the parents will pressure her to have another arranged marriage with a Hindu. In the statement of 21 January 2015 she stated that the parents “are very particular about the religion and caste”. At the hearing she said the father wanted to follow Hindu traditions and culture. However, I do not accept that the parents are traditional Hindus who will seek to seek to enforce their will on the applicant in the way she claims. In particular I note that:

• The applicant married [Mr A] a few months before they came to Australia, and she says, after arrival they separated within [number] days. She claims the father arranged this marriage. However, [Mr A] was a Sikh and they married in a Sikh ceremony. When I pointed out that it is unusual that her father went to the Sikh community to find a husband, she explained her father and his father were friends and she did not convert to the Sikh religion. Nevertheless, on the material before the Tribunal I am not satisfied that the marriage between the Hindu applicant and Sikh husband that was outside the Hindu tradition and culture was an arranged marriage. The applicant’s marriage to a Sikh man does not support her claim that the father was a traditional Hindu who was very particular about the religion and caste, and does not show that the applicant was a Hindu traditionalist.

• The applicant separated from her husband in Australia soon after arrival, and much later divorced him. When I queried what the parents’ reaction had been to the news of the separation, she said they advised her not to leave him and then gave practical advice on how she could afford to leave him. However, in her narrative the father had arranged the marriage and so the applicant’s evidence of the parents merely worrying about how she would cope financially and not showing any great concern with the actual separation does not support her claim that the father was a traditional Hindu.

• When the applicant travelled to India in 2012 she had been separated for some time, however, her evidence is that she merely avoided the parents-in-law who asked about her. Her separation ostensibly caused her no particular difficulties in India.

• The applicant’s sister married a Christian Australian in India in 2012. The sister was in Australia on a [temporary] visa when she met the Australian and, the applicant said, the sister fought to marry him. The sister subsequently separated from her husband. When I pointed out that Christians marrying Hindus is a rare thing in India, she disagreed and said none of her family or friends thought it unusual and indeed the parents did not object. Nevertheless, the sister’s marriage to a Christian man does not support her claim that the father was a traditional Hindu who was very particular about the religion and caste.  

1. In sum, as I pointed out to her, none of her evidence about her marriage to a Sikh and then separation/divorce and the sister’s marriage to a Christian in India, supports her claim that the father and/or the family are Hindu traditionalists. As well, both the applicant and the sister have shown they are women who have lived independently in another country and who have managed their own lives and marriages. The family was financially well-off and had in the past been willing and able to sponsor both the applicant and sister to study in Australia. In light of the foregoing I find unpersuasive her claim that the father, mother or family will seek to force her to marry if she returns to India. In light of the foregoing I reject her narrative and evidence that she is estranged from the parents. Nor do I accept that in India the parents or anyone-else will seek to dominate her and seek to force her to marry, whether or not in a traditional Hindu marriage. I reject her claim that if she does not comply with the parents’ wishes they will harm her or pay someone to harm her.

2. The applicant claims that if she goes to live away from the parents to another place in India she will appear to be a single woman living alone and so vulnerable to predatory men. However, as I do not accept the applicant is estranged from the parents and family, I do not accept that she will be unable to return to the home area where the parents reside. As well, as I pointed out to her while she will be a divorcee in India and will face social stigma as a result, I do not accept this rises to the level of persecution. In sum, I do not accept that in her home area the applicant will be vulnerable as a divorced/single woman to the extent that she will face serious harm amounting to persecution in the reasonably foreseeable future.

3. On her return to her home area she will have family support until she readjusts to life in India and until she can seek and get work. She does not come from a poor socio-economic background. She has skills, good English, and qualifications that will enable her to seek and get appropriate work in her home area. I do not accept that economic conditions or any other circumstances the applicant faces in India will result in significant economic hardship that threatens her capacity to survive, or will deny her the capacity to earn a livelihood of any kind.

4. As well, at the hearing I went on to discuss how she could relocate to another place in India despite her fears that she would be vulnerable away from her home area. As I pointed out to her country information[3] shows single women and/or divorced women, would find it much easier to live in a city like New Delhi, where a lot of young people successfully live. I indicated she would be able to get share accommodation just as she had in Australia and she had skills, good English, qualifications, so she would be able to seek and get employment somewhere like New Delhi. The applicant discussed how she would nonetheless be harassed by boys who would seek to take advantage of her. But as I had said to her, while country information shows she would face this in India, such teasing and harassment does not rise to the level of serious harm amounting to persecution.

   [3] DFAT Thematic Report Indian State of Punjab, 7 December 2016

Refugee criterion

1. In light of the above assessment, the Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons she claimed. The Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm.

2. In light of the foregoing I do not accept that the applicant will be unable to return to her home area where she has family support. I reject her narrative and evidence that she is estranged from the parents. The applicant is not from a poor socio-economic background and the parents had in the past facilitated her travel to and study in Australia. I do not accept that the parents or anyone-else in India will seek to harm the applicant because of her friendship/relationship with [Mr B] in Australia. Nor do I accept that in India the parents or anyone-else will seek to dominate her and seek to force her to marry, whether or not in a traditional Hindu marriage. I reject her claim that if she does not comply with the parents’ wishes they will harm her or pay someone to harm her. I do not accept that in her home area or elsewhere in India the applicant will be vulnerable as a divorced woman to the extent that there is a real risk she will suffer significant harm now and in the reasonably foreseeable future. I do not accept that poor economic conditions or any other circumstances the applicant may face on her return to India will result in significant economic hardship that threatens her capacity to survive, or will deny her the capacity to earn a livelihood of any kind.

3. In sum, I find there is no real risk that she will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if she is removed/returns to India.

Conclusion

1. 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 s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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).

DECISION

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

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

Refugee

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 themself 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.

Complementary protection

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’).

‘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.

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.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.