1602494 (Refugee)

1602494 (Refugee) [2016] AATA 4170 (7 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602494
COUNTRY OF REFERENCE:                  India
MEMBER:Filip Gelev
DATE:7 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 07 July 2016 at 2:16pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of India, applied for the visas [in] January 2016.
The applicants appeared before the Tribunal on 18 May 2016 to give evidence and present arguments. 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
Based on the copies of the applicants’ passports, provided to the Department of Immigration, the Tribunal accepts that the applicants are nationals of India and has assessed their claims against India for the purposes of ss.26(2)(a) and (aa).
Right to enter and reside
While the applicants may have the right to enter and reside in Nepal, the Tribunal has not had to decide this issue, because it has found that Australia does not have protection obligations against India.
Claims
According to the delegate’s decision, a copy of which was provided with the application for review, the first named applicant travelled to Australia from [August] 2014 to [November] 2014. He and the second named applicant married in India [in] December 2014. They both arrived on [temporary] visas [in] May 2015. They have not departed the country since.
[In] January 2016, when they had been unlawful non-citizens for just over four months, they were detained by police and then placed in immigration detention. [In] January 2016 they applied for Bridging visas on “departure grounds”, that is, they indicated that they will depart Australia voluntarily. [In] January 2016 they applied for Protection visas after the refusal of the Bridging visa applications.
The first named applicant wrote in the application form that he feared returning to India, because his friend’s wife’s relatives wanted to harm him.
The applicant wrote originally that he was “a witness of my friend’s murder because they both [bride and groom] from the same village”, that is, the groom was killed, because some people in India consider it wrong to marry a person from the same village. The word “murder” was covered with correction fluid and replaced with “marriage”. As a result the sentence “I was a witness of my friend’s marriage, because they both from the same village does not explain why the applicant had to leave the country.
According to the statement, the girl’s parents caught the newlyweds and killed the groom. They think that the applicant is also “the part of his marriage” and they said to him they will kill him.
On the application form he said he did not seek help within the country because “they people are very highly reputated”. The [relative] on [one] side is a [a senior official]. Hence, the police did not want to help the applicant. The applicant told the delegate that a member of the family of the girl was [a senior official]. Her name is [name deleted]. Country information indicates that there is such a [senior official], who is from [a town],[1] not far from [Village 1], the first named applicant’s home village.
[1] [Information deleted].
The second named applicant submitted a from with her own claims for protection (Part C of Form 866) but she only said: “All claims are same which we wrote in my husband’s file”.
At interview with the delegate, the applicant provided six A4 size photographs of the dead and bloodied body of man who was said to be the applicant’s friend. There is independent country information that a man called [Mr A] was killed [in] 2015.[2]
[2] [Information deleted].
In support of the applicant’s case, an undated letter was provided purportedly signed by five people (only one of the names is in English and [legible]) which “certifies” that the applicant was the murder victim’s friend and that the applicant’s life is not secure in India.[3]
[3] Folio 53 of DIBP file.
The Tribunal accepts that there appears to have been an “honour killing” in the applicant’s home village and that the applicant knew the victim.
The question is whether the applicant will be at risk on return.
Over time the applicants have given inconsistent evidence as to where the first named applicant was when he heard of the murder and what it was that he did immediately after the murder. The evidence involved reference to three locations – the home village of [Village 1] (where the murder happened), the applicant’s in-laws place in [Town 1] and the first named applicant’s [relative]’s place in [Town 2].
According to the application, the bride’s parents killed the applicant’s friend and after “that incident” the applicant moved away from his village to his in-laws. However, the girl’s family found him there and tried to kill him. That was why he had to leave India.
At interview with the delegate, the first named applicant said that he was in or near [Town 2] at the time of the murder. His parents called him to tell him.
His wife said that both she and he were in [Village 1]. After the murder they went to [Town 1] where her parents live. This was consistent with the evidence provided by the first named applicant in the visa application.
The delegate refused the application on credibility grounds.
According to pre-hearing submissions provided to the Tribunal on 11 May 2016 “[i]t is notable that killing of a best friend is a major shock and the applicant could have missed on exact location when moving under threat from place to place.” In other words, the first applicant may have become confused about where he was at the time of the killing.
At the Tribunal hearing, the applicant was asked when [Mr A] was married. He said in 2014. He said that he and two other friends of [Mr A’s] attended the wedding. There were no other witnesses. The applicant said that he did not remember the exact date of [Mr A’s] wedding, but it was before June 2014 when the applicant applied for a visa to Australia (the applicant’s first visit to Australia).
The first named applicant then raised a completely new claim. He said that the two other witnesses at [Mr A’s] wedding have also had problems as a result of their attendance at the wedding.
The two witnesses were [Witness 1] and [Witness 2]. [Witness 1] is now in prison after he was framed for a crime he did not commit, but the applicant was not sure of the exact nature of the false allegations. The girl’s family members who are in gaol beat up [Witness 1] when he was imprisoned. He said that three of the girl’s relatives are in prison: [her three relatives named]. A total of six people were involved and the other three are still on the run.
The first named applicant said that [Witness 1] was a [of a particular religion] and the applicant did not know his last name. He confirmed that [Witness 1] was from the same village and that he was a very good friend of the groom. However, nobody called [Witness 1] by his last name.
The applicant said that [Witness 1] had been imprisoned recently, but the applicant did not know when. He said that after his (the applicant’s) parents had come to Australia for a visit and when they returned from Australia to India [in] May 2016 they told him that [Witness 1] had been arrested. The applicant said that he did not know where [Witness 1] had been living after [Mr A’s] murder but he was on the run.
The applicant was asked about the fate of [Witness 2], the third friend present at the wedding. He said that [Witness 2] “ran away”. His family had told the applicant that.
The applicant said that he first started receiving threats before his own marriage. [Mr A] had initially left the village after his wedding. When he returned he and the applicant were spending time together. Someone told the girl’s family that the applicant was at the wedding and the applicant started getting threats. One time the girl’s brother tried to harm the applicant at the market.
The first named applicant was then asked where he was at the time of his friend’s murder. He said he was in [Town 2] at his [relative]’s house. When asked whether he returned to his village, [Village 1], after the murder, he said that he went back after an hour, collected his belonging and never went back to [Village 1]. When asked how long he spent there, he said two or three hours. He said he then travelled back to [Town 2], rather than to [Town 1].
At that time he was living in [Town 1]. As far as he remembered he had moved there in February 2015 after he started receiving threats in his village. Initially he moved there for a few days only, because his family was trying to mediate between him and the girl’s family.
The applicant was asked to confirm that as of the day of the murder he was already away from [Village 1]. He did so. The Tribunal asked why – if he was already fearing for his safety and living away from [Village 1], he returned after being told of [Mr A’s] murder, and he returned on the same day.
The applicant then changed his evidence and said that he did not go back on the day of the murder. He only went back to [Village 1] a few days after the murder. The Tribunal said it would have listen to the recording – which is has done since then – but if it remembered correctly his earlier evidence was that he returned to [Village 1] on the day of the murder. He said he did not.
The Tribunal asked the applicant whether he knew of any criminal charges against him in India. He said that there were no charges he was aware of so far, but he thought that if he goes back some false charges will be laid. He referred to the girl’s family and their link to [a senior official]. He said that the police had come to his parents’ house both before and after [Mr A’s] murder. They asked the parents where the applicant was and said they wanted to talk to him.
The applicant said that the police came to the house while the applicant was still in India. They have not come to the house since the applicant came to Australia, because the whole village knows the applicant – and his [Relative 1] – are in Australia.
The Tribunal asked why if the girl’s family was so influential they could not fabricate a case against [Mr A]. Instead, they committed murder and now three of her relatives are in prison and the other three are on the run. He said that [Mr A] was “the main person” and they wanted to kill him. The girl’s family would not have been satisfied to just get him imprisoned.
The Tribunal noted that it was not aware of any country information that there are honour killings of friends of people who marry against the wishes of their relatives. The applicant said that his case was different. He just repeated that the girl’s family wanted to kill him.
The Tribunal noted that the alleged perpetrators of the killing were charged with murder (the applicant himself had acknowledged earlier in the hearing that three out of the six people were in prison where they allegedly attacked [Witness 1]). Three were arrested, the other three were on the run and it would be a rather imprudent to commit further crimes. The Tribunal asked why the applicants believed they would be harmed. The first named applicant said that the three people who were on the run, or other members of the girl’s family, can harm them.
The Tribunal noted that when first apprehended without a visa in Australia, they applied for Bridging visas, they said that they were prepared to go back to India. The first named applicant said that they were stressed at the time and the legal advice they received was that it would be difficult for them to remain in Australia.
The applicants were asked what their intentions were when they became unlawful non-citizens in Australia. They said that they were hoping that things will get better e.g. all murder suspects are arrested or there is successful family mediation. The Tribunal pointed out that this was inconsistent with their claims that the family could harm them even if all six people involved in the murder were arrested. The applicant contradicted himself and said that indeed that was exactly why they could not go back after mediation in the village had failed.
The Tribunal asked whether they could relocate to a big city such as Delhi. He said his [Relative 1] had told him they could go to Delhi until the danger passes or until they can travel to a third country. His [Relative 1] had told him he could get the applicants a room in Delhi and support them financially for some time. He said it was not possible to go to Delhi, because they could be found and harmed there.
The Tribunal observed that Delhi’s population is at 10 million people,[4] and asked how the girl’s family would find them. The applicant said that people in Delhi might contact the girl’s family. He repeated that Delhi is not safe.
[4] The population was just under 10 million at the last census in 2001. However, according to more recent sources, the population is in fact 25 million. See “Delhi becomes world’s second most populous city”, India Today, 11 July 2014, accessed at on 6 July 2016.
The Tribunal referred to country information from the DFAT Country Information Report on India (15 July 2015) which indicates that there is a very high rate of internal mobility within India (at 5.14). The Tribunal referred to difficulties that people may encounter when relocating internally, as set out at paragraph 5.17. Having read the full paragraph, the Tribunal started going through all the factors enumerated at 5.17. It noted that Delhi is close to their home area and their language should not be a problem. The first named applicant then said that language was not a problem. He emphasised the only problem was they (the applicants) could be found if they relocate.
The Tribunal raised some credibility concerns with the applicants. First, the Tribunal suggested that the first named applicant was contradicting himself about the circumstances surrounding his location at the time of the murder. There were also inconsistencies at the interview with the delegate between his account and her account. The second named applicant said that as she had said earlier, she was under stress.
Secondly, the Tribunal said it had not heard of any cases where people who do not approve of a wedding would kill not only the bride or groom, but also a friend of the bride or groom in an “honour killing”.
The applicants said that if they get out of detention, they can get more proof, that is, further documents in support of their case. They could not specify what proof could be obtained, but the first named applicant said that if there was anything the Tribunal was not satisfied about, the applicant could try to get it.
The applicant said that the Tribunal could contact the police in India to verify that his criminal record was clean. The Tribunal pointed out that it would not do so, because he was seeking protection from India; and that this “invitation” to contact the police also undermined his claim that the police were complicit in the plot to harm him by fabricating false charges against him. When the inconsistency was pointed out to the applicant he struggled to answer the Tribunal: “I don’t say it like that, but I know for myself, for me that everything is good”, that is, that he has a clean criminal record.
The Tribunal gave the applicants until 25 May 2016 to provide further evidence of their problems and country information about killings of family of people who marry inter-caste or inter-faith.
On 24 May 2016, the Tribunal received a letter purporting to be from the village council, panchayat. According to it there is a danger to the first named applicant’s life “due to [his] being a friend of [Mr A]”. Another letter purports to be from [Mr A’s] mother. It claims that the applicant’s life is in danger and supports the applicants’ claims. Both letters were purportedly written in Punjabi and translated into English.

The representative also provided two pages from a police report or a First Incident Report in relation to the killing of [Mr A]. The Tribunal has already accepted that [Mr A] was killed by relatives of his wife.
The representative’s submissions of 24 May 2016 explain that love marriage among the people living in the same village are not accepted and that in 2012 the General Council of Village Councils demanded an amendment to the relevant legislation in order to make the marriage of boys and girls in the same village illegal. This was consistent with the first named applicant’s evidence at interview with the delegate that the entire village had been humiliated as a result of [Mr A’s] marriage.[5]
[5] At pp. 7-8 of the delegate’s decision, a copy of which was provided with the application for review.
The applicant’s representative also provided country information in support of the case. Many articles were submitted about examples of honour killings and other harm being inflicted on persons who marry against the wishes of their relatives or against the wishes of the village council. Some of the articles concerned harm being inflicted on the relatives of the bride or the groom. One article referred to an incident in Pakistan where a person was killed for helping a friend elope. It was asserted that “[n]eedless to mention that both countries share the same socio-cultural heritage”; therefore, the same could happen in India.
Allegations of criminal conduct in India
The Tribunal notes that allegations of pending criminal charges were raised by the delegate at interview, based on a dob-in from an unknown source. The Tribunal discussed the issue with the applicants as well. They denied that they had been involved in any criminal conduct.
The Tribunal observes that the allegations are anonymous.
One of the allegations is that the applicants are using a “medical condition” to obtain visas.
The Tribunal notes that the applicants left India on genuine Indian passports. The “movement records” available to the Tribunal from the Department of Immigration indicate that they travelled on a direct flight from New Delhi to [Australia] (flight [company name and number]).
As the first named applicant’s [Relative 1] is permanently domiciled in Australia and the applicants travelled to Australia, if the Indian authorities suspected that the applicants had fled in order to avoid facing criminal charges in India, Australia would likely be the first country they would approach.
Because (1) the source of the information is unknown, (2) at least one of the allegations (about a “medical condition”) is demonstrably false, (3) the Indian authorities could contact the Australian authorities if they were seeking to extradite the applicants, and (4) the applicants strenuously deny that the allegations are true, the Tribunal considers that the allegations are baseless. The Tribunal gives no weight to these allegations in making its decision.
Well-founded fear of persecution
However, for the reasons that follow, the Tribunal does not accept that the applicants are credible witnesses and rejects their claims.
a.The Tribunal has already set out, above, the different versions provided by the applicants in relation to their location when they heard about the murder. The first named applicant’s application form and the second named applicant’s oral evidence before the delegate was that they were in [Village 1] when the murder occurred. The first named applicant’s evidence at interview with the delegate was different. He said they were in or near [Town 2]. Because of the murder, the applicants decided to stay in [Town 2].[6] The applicant gave the Tribunal two versions. First, that he was in [Town 2], returned to [Village 1] on the day of the murder, collected his belonging (which took two or three hours) and never went back to [Village 1]. He said he then travelled back to [Town 2]. Lastly, he said that after being told of the murder he did not go back to [Village 1] immediately. He went a few days after the murder. The Tribunal does not accept the explanation that the first named applicant was so traumatised by the murder of his friend that he could not recall where he was when he heard about it. Even if this was true, and he was temporarily confused about the issue when he appeared before the delegate, he did not tell the Tribunal that he was confused or could not recall. He answered the Tribunal without any hesitation, but in the process contradicted himself.
b.The Tribunal considers it implausible that the bride’s family, who have already killed [Mr A] and restored honour to the family, would seek to harm anybody else. The Tribunal does not consider that the country information provided by the applicant supports the proposition that in India friends of persons who marry against the wishes of their relatives, or against the wishes of their villages, get harmed.
c.The Tribunal finds it far-fetched that the three people who have already been charged with [Mr A’s] murder will return to the village to commit a second murder or seek to harm the applicant in another manner.
d.The claim that two other people were present at the wedding and they were also being hunted down by the girl’s family was only made at the Tribunal hearing. Futher, the Tribunal considers it implausible that the applicant would not know the last names of [Witness 1] (one of the other witnesses), given that this was a very small wedding and clearly the other two men were close friends of [Mr A’s].
e.The applicant claimed that the girl’s family was well-connected and able to pull strings so that the applicant would be framed by the authorities and harmed. However, the information provided by the applicant himself was that the police charged the six men who were allegedly involved in the murder and promptly arrested three of them. The other three were apparently on the run. This undermines the applicant’s claim that the police are in on the conspiracy to harm the applicant and that one of the other men at the wedding [Witness 1] has been arrested and framed by the police.
f.The applicant further undermined the same claim that the police were involved in the plot to harm him when he invited the Tribunal to contact the police in his home area. He was confident that they would tell the Tribunal that he did not have a criminal record or any charges against him.
g.The Tribunal considers that if the applicants were genuinely fearful for their safety if they were to return to India, they would have applied for protection earlier than they did. This was the first named applicant’s second trip to Australia and the applicants had some familiarity with various visa options in Australia. When their Bridging visas were refused they applied for Protection only four days later and without any assistance (see question 6, Part B of application form).
[6] See delegate’s decision at p. 8. As already noted a copy of the decision was provided with the application for review.
In making its decision the Tribunal has considered the totality of the evidence. The Tribunal does not have the originals of the letters purporting to be from [Mr A’s] relatives and from the village council and it has not been able to verify their authenticity. However, the Tribunal notes that the letters were procured rather quickly after the hearing – the hearing was held on 18 May 2016 and the applicants, who are in detention, managed to obtain the two letters from rural India, translate them into English and give them to the Tribunal by 24 May 2016.
The Tribunal was also surprised about the contents of the letter from the village council or panchayat. The applicant’s representative told the Tribunal that marriages between boys and girls from the same village are opposed by panchayats. This was also the applicant’s evidence to the delegate. However, in the present case the village council obligingly prepared a letter in support of the applicant’s case.
In light of the speed with which the letters were obtained from India and translated into English, the contents of the panchayat’s letter, and the Tribunal’s other credibility concerns set out above, the Tribunal gives the letters, including the letter provided to the Department of Immigration,[7] little weight.
[7] Folio 53 of DIBP file.
The Tribunal finds that the only true aspect of the applicant’s claims is that [Mr A] was a good friend of the first named applicant’s. The Tribunal does not accept that the applicant was a witness at the wedding, that the girl’s family have ever had any adverse interest in him, that they have threatened him (or his wife or any of his relatives). The Tribunal does not accept that two other men, who were friends with [Mr A], have been on the run or have been imprisoned on false charges. The Tribunal does not accept that the applicants had to move away from the village in order to avoid harm. The Tribunal finds that neither applicant is of any adverse interest to anybody in their home village or anybody else anywhere in India.
The Tribunal therefore finds that the applicants do not have a well-founded fear of serious harm amounting to persecution (s.5J(4)). It is therefore not necessary for the Tribunal to decide whether there is a “nexus” with one of the grounds contained in s.5J(1)(a) of the Act.
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Based on the totality of the evidence, for the reasons provided above, the Tribunal finds that the applicants can return to India and they will not suffer any harm from any person that would amount to significant harm as defined in the Act.
Consequently, the Tribunal finds there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that they will suffer significant harm.
Therefore, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Relocation
The finding below is in addition to the Tribunal’s findings that the applicant’s claims are false and that, therefore, they are not persons in respect of whom Australia has protection obligations.
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) – race, religion, nationality, membership of a particular social group or political opinion – s.5J(1)(c) imposes an additional requirement, namely, that the the real chance of persecution relates to all areas of a receiving country.
As discussed with the applicants at the hearing, they can relocate to Delhi. They did not argue that there were any practical impediments to them doing so. They said that the first named applicant had offered to help them financially. They simply repeated that they feared that the girl’s family may find them and harm them in Delhi.
The Tribunal finds that as Delhi is one of the largest cities in the world, with a population of over 10 million people, the claim that the bride’s family can locate the applicants in Delhi is far-fetched. Therefore, the applicants do not satisfy the requirements of s.5J and they do not have a well-founded fear of persecution.
In relation to complementary protection, s.36(2B)(a) of the Act states that there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm.
At the hearing the Tribunal discussed with the applicants the offer that the first named applicant’s [Relative 1] had apparently made to them that they relocate to Delhi where he (the [Relative 1]) could support them financially for some time. The Tribunal also discussed with the applicants the DFAT Country Information Report which indicates that there is a high level of internal migration inside India. The first named applicant told the Tribunal that their concern with moving to Delhi was that the bride’s family would find them and harm them.
As noted above, the Tribunal does not accept that proposition. The Tribunal finds that it would not be unreasonable for the applicants to relocate to Delhi – if they must – and that there is less than a real chance that they will be found in Delhi by anybody who may wish to inflict harm on them.
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Filip Gelev
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 4170

7 July 2016

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Immigration

Administrative Law

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Jurisdiction

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