1604503 (Refugee)

1604503 (Refugee) [2017] AATA 519 (16 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604503
COUNTRY OF REFERENCE:                  India
MEMBER:Suzanne Carlton
DATE:16 March 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 16 March 2017 at 2:15pm

CATCHWORDS
Protection visa – India – Particular social group – Inter-caste marriage – Child of inter-caste marriage – Honour killings – BJP – Delay in protection application – Threats of violence – Effective protection – Relocation to Nepal

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 499
Migration Regulations 1994 Schedule 2

CASES
MIMAC v SZRHU [2013] FCAFC 91
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] March 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] March 2015. The delegate refused to grant the visas on the basis that she was not satisfied that the parties were owed Australia’s protection obligations.
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 the applicants are owed Australia’s protection obligations. For the following reasons, the Tribunal has concluded that that the matter should be remitted for reconsideration.
The Tribunal has before it the Department’s file relating to the applicant’s protection visa application. The applicant has provided a copy of the delegate’s decision to the Tribunal.
According to the information provided on the application form, the first-named applicant is [an age]-year-old Indian citizen who entered Australia [in] June 2009 with the second-named applicant, her [age]-year-old husband, also an Indian citizen. At that time, the first-named applicant held a student visa and her husband was a dependent on that student visa.
The first-named applicant and the second-named applicant were subsequently granted a number of student visas, the last of which was valid until [September] 2013.
In April 2013 the first-named applicant applied for a [temporary business] visa, with the second-named applicant as a secondary applicant. That application was refused by the delegate in June 2013. The applicants then sought review before the Migration Review Tribunal (MRT), differently constituted. The MRT affirmed the delegate’s decision in March 2015 on the basis that [the applicant] did not genuinely intend to undertake the position the subject of the [temporary business] application.
Two weeks later, the applicants lodged this visa application. The third-named applicant was born [later] and added to the application.
The applicants have returned to India on a number of occasions:
·The first-named applicant travelled to India for two weeks in late 2011; for [number] days in late 2012; and for [number] days in late 2013.
·The second-named applicant travelled to India for a month in late 2011 and for [number] days in late 2014.
The first-named applicant, during the hearing before me, confirmed the above information as accurate.
According to the information provided by the first-named applicant to the Department, she said that she left India to come with her husband to Australia because she feared persecution by her family if her inter-caste marriage were to be discovered.[1]
[1] Department file [number].
Specifically, she set out her claims as follows:
Why did you leave that country?
[The applicant], being a non-Dalit is considered superior to [the applicant husband] who is a Dalit. [The applicant] and [her husband] fell in love and their relationship began in 2007. Being aware that the relationship was in stark defiance of the caste system prevailing in their community, the couple ([the applicant, named] and [her husband]) decided to get married secretly. Their marriage took place [in] 2008 at the Registrar’s office in [Town 1], Haryana quietly without any social invitations or intimations. After the marriage, there lived in constant fear, and without disclosing this fact to anyone in their locality or community. The fare included the fear of risk to their own lives, as well as the fear of a fatally violent impact on their family members.
After a few months of leading a fear filled married life, [the applicant] and [her husband] decided to apply for an Australian [student visa] with [the applicant] as the main applicant and [her husband] as her dependent. They came to Australia in the year 2009. Their applying for an Australian student visa had a dual goal: firstly, they could try and get better qualifications for their career advancements; and secondly, they could avoid the wrath of the community members, who would not only try to punish them, but kill and torture their family members as well, upon becoming aware of the fact that the two have got married. After arriving in Australia in 2009, to the state, [the applicant] and [her husband] have been living in Australia as husband and wife.
…
Did you experience harm in that country?
No. Harm was not experienced as none of the relatives of the applicant and her husband knew about their marriage when they were in India. However, if they were to return they will be harmed.
…
Did you move, or try to move, to another part of that country to seek safety?
[The applicant’s] father is a member of the ruling political party in the region (the Bharatiya Janata Party (BJP)) and is politically very influential. Presently, he is very upset because of the so-called shame inflicted on himself and his family by his daughter [named] having married a Dalit caste member. To upkeep his own image he would not hesitate to organise an honour killing of [the applicant] and [her husband] by taking the support of the Khap Panchayat members. He is capable of easily tracking them down even in case the couple decides to resettle in any part of India. Moreover, with the caste system being prevalent throughout India, and without family help and support, the applicant couple would certainly face discrimination in relation to housing, employment and basic services and could even face physical danger…
…
Do you think you will be harmed I must treated if he returned to that country?
Yes. [the applicant] and [her husband] hereby appeal to the Australian government to provide protection on the grounds that, in the absence of protection, they (the applicant) would stand to suffer significant home in their home country by way of one or more of the following ways:
1. Being deprived of their life as well as the life of their immediate future baby;
2. Being subjected to cruel and inhuman treatment or punishment;
3. Being subjected to degrading treatment or punishment; and
4. Their family members being subject to brutal attacks or a murder or inhuman treatment. …
You think the authorities of that country can and will protect you if you go back?
In cases of inter-caste marriages, violence on women and caste atrocities, the police and authorities usually stand with the perpetrators and against the victims or at best play role of a mute spectator. Official figures claim that 1000 honour killings occur in India every year. However, in reality, the figures are much higher. A substantial amount of these honour killings take place in Haryana with the support of the Khap panchayat (Khap Panchayat functions as a judicial body in 84 villages of India). …[2]
[2] [File number] Folios 93-97.
The responses to the questions put to the secondary applicant are identical to those provided by the primary applicant.[3] Both of their applications refer to their agent’s submissions for more detail.
[3] [File number] Folios 67-72.
The agent’s submissions[4] outline that the primary visa applicant is a Saini caste Hindu woman and the secondary applicant is a Balmiki caste Hindu man. Both were born in Haryana.
[4] [File number] Folios 53-66
The submissions seek to explain the caste system in India and the effect of inter-marriage in the caste system.
While both parties initially had the support of their mothers, [the applicant] no longer has her mother’s support and her brother has begun to threaten [the applicant].
The agent’s submissions further outline that her father is ‘politically very influential’ with the riling BJP party and his profile is such that he would attempt to protect his honour by arranging an honour killing of his daughter.
The parties provided to the department a copy of the second-named applicant’s caste certificate from 2001.
The parties were interviewed by the department [in] October 2015. They appear to have reiterated their claims, noting that the birth of the child makes things more difficult because [the applicant] had told her family that she was divorcing her husband. Her family is aware of the birth of the child.
The delegate, in refusing the applicant, expressed concern about the evidence of the second-named applicant’s caste. The delegate was not convinced that the parties faced serious harm from their families, as believed. Nevertheless, the delegate considered whether the parties could reasonably relocate, including to Nepal (pursuant to the friendship treaty between those countries).
The delegate found that the parties would have effective state protection were they to seek it in Nepal and thus found that the parties were not entitled to Australia’s protection.
Review application
A number of further documents and submissions were provided to the Tribunal, both pre-hearing and post-hearing. The applicant provided to the Tribunal a copy of the delegate’s decision.
Pre-hearing submissions
Prior to the hearing, the applicants provided a copy of an audio recording said to record threats made by [the applicant’s] brother to her. The recording was of a man apparently speaking Hindi.
The applicant’s also provided a death certificate and autopsy report for [an age]-year old man that died in Haryana [in] July 2016. The remainder of the document appeared to be in Hindi.
The parties provided a report by the International Labour Office in Nepal about Dalits, forced labour and discrimination in Nepal from 2005, as well as interview with an expert in Dalit caste issues, comparing those issues in India and Nepal, from August 2016.
In accompanying submissions, the representative made forceful arguments about difficulties of the applicants resettling in Nepal. Relevantly, the representative argued that [the applicant’s] [Relative A] owns a large farm in India and sources workers frequently from Nepal. He has a number of close contacts in the Indian community and Nepal and it would be easy for him to locate [the applicant] there.
The hearing
At the hearing, the applicants confirmed that they understood the Hindi interpreter used.
The applicants largely reiterated their accounts previously provided, updating it with further evidence. Both applicants struck the Tribunal as open and honest, particularly the second-named applicant.
Concerns about the evidence were raised and discussed, including details of the second-named applicant’s caste certificate that led the delegate below, and the Tribunal upon review, to question its veracity.
Additionally, the evidence tendered in Hindi was raised and the parties sought time post-hearing to provide translations and further evidence relating to the second-named applicant’s caste.
Additional time was provided. A request for further time was then sought and granted.
Post-hearing submissions
The applicants provided an English language translation of the death certificate earlier provided. It relates to [name], the second-named applicant’s [Relative B]. That evidence indicates that he was killed in a motorcycle accident that the second-named applicant and his family considered to be suspicious, as the other driver involved left the scene. Also provided was a First Incident Report (FIR) made by [Relative B’s] father, together with an English language translation of the same. During the hearing, the second-named applicant had explained his last conversation with his [Relative B] and that his [Relative B] recounted to him that several people had been asking about the second-named applicant prior to that conversation. I note the FIR refers to the caste of the family as Balmiki.
Also provided was a transcription and translation of the audio recording and translation of text messages from [the applicant’s] brother to her.
The second-named applicant provided copies of caste certificates for a number of family members.
Country Information
Intercaste marriages in India
Inter-caste marriages are protected under Indian law, being recognised under the Arya Marriage Validation Act 1937. Additionally, a 2006 report from the Immigration and Refugee Board of Canada (IRB) stated that the Indian government offered financial incentives to promote inter-caste marriage. The Indian government claims to support intercaste marriage and provides grants to newly-wed inter-caste couples where at least one person is a member of a scheduled caste. However, a report in The Tribune in June 2012 states that no such payments have been made in Punjab in the preceding four years due to the state’s “precarious fiscal condition”. The report also states that at the time of writing, there were 552 eligible couples in the state awaiting payment.
A 2003 article stated that, at the time, the High Court in Delhi heard between 15 and 20 new cases alleging rape or abduction per month, where the women involved claimed to have actually married by choice. A reading of the article supports the assessment that these figures are largely related to inter-caste unions where families disapproved (thus filing charges), and stated that most cases were decided in favour of the women. The public prosecutor, however, admitted that a woman’s safety could not be guaranteed outside the court: “[m]ost couples invariably have to return to live surrounded by a hostile community and police force that instead of protecting them will continue to harass them”.
A 2011 article from the Indo-Asian News Service stated that police in Punjab state had been unable to find a solution to an apparent ‘surge’ in the number of honour killings. The Punjab and Haryana High Court ordered both states to “provide shelter homes to runaway couples who marry against the wishes of their families, caste or community and asked police to provide them with security”. According to BBC News, over 200 couples were reportedly provided with shelter by Haryana police during 2011.
Inter-caste couples attending a January 2013 conference in Tamil Nadu, organised by the All India Democratic Women’s Association in Madurai, reported that law enforcement officers could turn hostile due to their own caste sentiments. Illustrating this point, in early 2010 a Haryana court sentenced five people to death for killing a same-gotra couple who had married against the wishes of the bride’s family. A police investigation apparently found that officers assigned to protect the couple had passed information on to the assailants.
In response to the sentencing in the above case, Haryana khap panchayats launched protests, demanding that the government amend Hindu marriage law to ban same-gotra marriage. TIME reported that, “[a]stonishingly, prominent politicians from both the ruling Congress party and the opposition have come out in support of the khaps’ demand. With city and village elections due shortly, political parties see this as an easy ploy to lure votes, caste being a handy instrument of statecraft”. In June 2010, the Delhi High Court dismissed a petition calling for a ban on same-gotra marriages, with the judges asking the petitioner to demonstrate which Hindu text banned such unions.
In terms of protection provided by non-state actors, a Delhi-based volunteer group known as the ‘Love Commandos’ assists inter-caste couples who fear retribution from family members or khap panchayats. The Love Commandos provide a helpline, and rescue missions/emergency accommodation for those who believe their lives to be endangered. Established in July 2010 in response to a spate of honour killings in northern India, the Love Commandos claimed to have 2,000 volunteers nationally as at October 2010. According to a BBC News article, the Love Commandos claim to have provided approximately 200 couples with shelter during 2011.

The July 2015 DFAT report on India at 2.28, states ,[i]n addition to the Central and state governments, India’s Constitution recognises self-governing ‘panchayats’ (caste councils) at the village, intermediate and district levels as well as larger urban municipal corporations and city councils. The same DFAT report states that at 3.35:
There is also significant social pressure for individuals to marry within their own caste and/or religion. While statistics for inter-caste and inter-faith marriages can be variable, an India Human Development Survey conducted in November 2014 reported that just five per cent of Indian women had married a husband from a different caste, with inter-caste marriage being most common in Gujarat and Bihar (over 11 per cent) and rarest in Madhya Pradesh (less than one per cent).
There have also been reports that intercaste couples who have relocated outside of states like Punjab and Haryana, have been located by their families in large urban centres such as Delhi.
FINDINGS AND REASONS
On the basis of the applicants’ passports presented to the Department and in the absence of evidence to the contrary, I find that they are each nationals of India.
The applicants claim that if they return to India they face persecution from the first-named applicant’s family and community in Haryana because she entered into an inter-caste marriage with the second-named visa applicant and together, they had a child, being the third-named visa applicant.
I have had regard to the fact that the applicants did not make Protection visa applications until after their applications for a [temporary business] visa was refused and that decision was affirmed by the Migration Review Tribunal, as it then was, differently constituted.
Their explanation for making the visa so late was that it was around this time that [the applicant’s] brother began making threats after finding social media photographs of the couple. I consider the explanation provided to be plausible.
I shared the concerns of the delegate as to the veracity of the evidence of the second-named applicant’s caste. However, the documents provided to me post-hearing indicate to me that he is, in fact, a Dalit caste member and I accept that he is a member of that scheduled caste.
[The applicant] and her husband have had a child and the birth of the child is known to both families. According to the applicants, the threats have increased in severity and they provided some evidence of this.
The Tribunal notes that the applicants have been largely consistent in their claims. The Tribunal has had regard to the additional evidence provided, as well as the relevant country information, including the most recent DFAT report.
On this basis, the Tribunal accepts that the first-named and second-named applicants are in an intercaste marriage and that the third-named applicant is the child of that relationship.
Having had regard to the country information, the Tribunal accepts that is neither a remote nor far-fetched possibility that due to their marriage, the applicants would face serious harm as the hands of the first-named applicant’s family or community. Based on the country information, the Tribunal finds that the applicants face a real chance of serious harm and therefore persecution within the meaning of s 91R (2) of the Act.
The essential and significant reason for the first-named and the second-named applicants being subjected to this treatment is due to their membership of a particular social group, being persons in an intercaste marriage.
The Tribunal finds that the applicants do have a well-founded fear of persecution for a Convention reason. As per the country information, the Tribunal is not satisfied that the parties could seek effective state protection.
The Tribunal has considered whether the applicants could relocate to avoid the risk of harm but as the harm they fear is based on the inaction or joint action of the Indian authorities, vis-à-vis the applicant’s family and community, I consider that they would be at risk throughout India. The Tribunal finds that the first-named applicant is a refugee within the meaning of the Convention and is owed protection obligations.
The Tribunal has considered the prospect of the applicants going to Nepal to seek effective protection. The Tribunal notes that India and Nepal have a treaty that permits Indians and Nepalese to travel and reside, to an extent, in each country. Section 36(3) of the Act does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn. Therefore, while a legally enforceable right to enter and reside in a country which is specified in the domestic law of a country will come within s.36(3), the scope of that provision is not limited to such circumstances; the relevant right could be found in the terms of a treaty or convention as implemented by particular arrangements. It will be for the decision-maker to evaluate the information before him or her in determining whether a liberty, permission or privilege of the relevant kind exists.
This distinction was highlighted by the Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91. In that case, the Court held that the Tribunal had erred in finding a Nepalese citizen had a right to enter and reside in India on the basis of advice concerning the meaning and operation of the Treaty of Peace and Friendship between India and Nepal 1950. The Court observed that the terms of the Treaty itself, while reflecting a mutual right of residence, did not appear to give rights of entry. The Court indicated that the Tribunal should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test of a liberty, permission or privilege lawfully given, to enter and reside in the country.
The Departmental PAM3 Refugee Law Guidelines state that a right which only exists as a matter of practical reality and fact (e.g. where porous borders allow freedom of movement), or a discretionary right (e.g. where a country has no positive law or binding or guiding criteria dealing with the ability of certain persons to enter and reside, but in practice an official will sometimes allow entry at their discretion) would not appear to meet the standard of a right for the purposes of s.36(3) established in MIMAC v SZRHU.
The Tribunal has considered this in the circumstances of the applicant. The applicants have provided country information relating to intercaste couples in Nepal and considers that they may face serious harm in Nepal The Tribunal also notes that the evidence that the applicant’s [Relative A] has many close contacts in the Indian community in Nepal The Tribunal considers that the applicants would likely be permitted to enter Nepal given these restrictions, but would be unlikely to receive effective protection as per s36(3).
For the reasons given above the Tribunal is satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations. Therefore the first-named applicant satisfies the criterion set out in s.36(2)(a).
The Tribunal is satisfied that the first-named applicant’s husband and son are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first-named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.
Suzanne Carlton
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.
…

[2017] AATA 519

16 March 2017

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