1604780 (Refugee)

[2019] AATA 5239

1604780 (Refugee) [2019] AATA 5239 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604780

COUNTRY OF REFERENCE:                  India

MEMBER:Linda Symons

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2019 at 10:55am

CATCHWORDS
REFUGEE – protection visa – India – religion – membership and activity in Muslim charity organisation – attacks and threats by Hindus – credibility – inconsistent evidence – multiple trips to other countries without seeking protection there – voluntary return to home country – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 424AA

Migration Regulations 1994 (Cth), 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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, arrived in Australia [in] March 2015 as the holder of a [temporary] visa. On 26 May 2015, he was issued with a Bridging visa in association with his application for a Protection visa.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 25 May 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has any protection obligations. On 8 April 2016, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 3 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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 AND FINDINGS

12. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He is a citizen of India and a Muslim. He is from Karaikal in the State of Pondicherry in India. He got married [in] September 1996 and has [children] of his [marriage].

    ·He is a member of the Tamilnadu Muslim Mannetra Kalagam (TMMK). The TMMK does a lot of social work. He was involved in helping people who were affected by the tsunami as well as assisting members of the Muslim minority community.

    ·The [Masjid] had some land. In 2014, the Managing Committee of the Masjid decided to construct a building on that land. The Rashtriya Swayamsevak Sangh (RSS) and other Hindu organisations would hold rallies near the Masjid, swear at Muslims, throw stones at the Masjid and neighbouring houses, tell Muslims to go to Pakistan or other Arab countries. The RSS were against the construction and started rumours that the building was being constructed on a burial ground. The government “sealed” the construction.

    ·The TMMK decided to speak to the RSS and take legal action against them. The RSS became angry with people in the TMMK and started targeting TMMK members. As a member of the TMMK, he was afraid to “go alone”.

    ·He went to the Police Station many times to take legal action against the RSS. [In] July 2014, the Court ordered the removal of the seal on the construction site. The RSS members became angry especially against him as he organised many people and worked against them. In July 2014, he went to [Village] to meet some friends. About 20 RSS members attacked him and tried to kill him. After this incident, he could not stay in his city or go anywhere because there was a threat to his life.

    ·He has been to other States in India and people try to get him because the RSS has a large network in India. The RSS has the support of the Indian government and the Indian Prime Minister.

    ·In 2002, there was a riot in Gujarat and about 2000 Muslims were killed.

    ·He went to [Country 1] to hide as he feared for his life. RSS members went to his house and asked his family about his whereabouts. They swore at his father and got attention in the neighbourhood. His father was stressed as a result and was admitted to hospital on a couple of occasions.

    ·He returned to India to visit his family. One day, he and his wife took his father to hospital. They had to cross the temple on the way and there was a Hindu meeting going on. People identified him and he was beaten up very badly. He was injured but no one, including the Police, helped him. After this incident, he and his family feared for their lives. There were occasions when his son was asked about him whilst on his way to school.

    ·As a result, he decided to leave India because they would not let him live peacefully. He was advised by friends to go to Europe, Canada, Australia and New Zealand and decided to come to Australia.

    ·If he is not protected by Australia he has nowhere to go and his life would be at risk

13. The applicant has provided to the Department a copy of his Indian passport.

14. The applicant attended an interview with the Department on 21 March 2016. During that interview, he reiterated and expanded on his written claims.

15. The applicant has filed with the Tribunal copies of the Department’s Decision Record dated 24 March 2016 and his Photo Card.

16. On 28 March 2019, the Tribunal received a statement from the applicant. On 31 March 2019, the Tribunal received a copy of the World Report on India for 2019 from Human Rights Watch from the applicant.

    Receiving country

17. The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India and that he is outside his country of nationality. The Tribunal finds that India is his receiving country for the purpose of assessing his claims for protection.

    Third country protection

18. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

19. The applicant gave evidence that his roommate prepared his application for a Protection visa. He stated that he provided his roommate with the information to prepare his visa application and that the information he provided him was true and correct. He stated that he assumes that his visa application is accurate because his English is not very good. He stated that there have been no changes in his circumstances since he filed his visa application.

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in India, his stay in [Country 1], his reasons for leaving India and why he fears returning to India. The Tribunal found aspects of his evidence to be vague, lacking in detail, implausible and unconvincing. There were inconsistencies between his evidence to the Department and his evidence to the Tribunal. His conduct was not consistent with his claims. The Tribunal formed the view that he is not a credible or reliable witness for the following reasons:

21. First, in his application for a Protection visa, the applicant claimed that he is a member of the TMMK, which did a lot of social work, and was involved in helping people who were affected by the tsunami as well as assisting members of the Muslim minority community. In his statement to the Tribunal dated 27 March 2019, he stated that the TMMK was a political party, that he was an active member of this party and was involved in political activities to promote his party.

22. During the hearing, the applicant gave inconsistent evidence. He stated that he became a member of an organization called the Tamil Nadu Muslim Development Organization (TNMDO). He stated that the TNMDO is a registered charity. He stated that he became a member of the TNMDO in about 2012. He stated that other organizations donate food, clothes and medical supplies to the TNMDO and members of the TNMDO distribute the donations to needy people. He stated that he assisted people who were affected by the tsunami.

23. The Tribunal asked the applicant whether he was referring to the tsunami in the Indian Ocean in December 2004 and he answered yes. When the Tribunal noted that the tsunami occurred 8 years before he joined the TNMDO, he responded that the government offered some people assistance after the tsunami but many people lost their homes and family members and were in need of ongoing assistance.

24. These inconsistencies in the applicant’s evidence in relation to what organization he joined and what activities he was involved in raise concerns in relation to his credibility and the veracity of his claims.

25. Second, during the hearing, the applicant gave evidence that he came to Australia to seek asylum because he had some problems as a Muslim. When asked what problems he had, he responded that they live in a community and help each other especially the youngsters. He stated that the RSS did not like that. He stated that he could not live there because they “continually tortured” him and created problems for him. He stated that he could not work to support his family so he decided to go overseas and seek asylum.

26. The Tribunal asked the applicant a number of times to specify the problems he had and the torture he was subjected to but had difficulty getting a responsive answer. He stated that someone donated a piece of land to the Muslim community and they used that land to erect a prayer hall and a place to provide food to youth after having got permission from the government to do so. He stated that the RSS did not like that and asked them to stop. He stated that the Muslim community reported this to the Police. He stated that the Police made some inquiries and supported the RSS.

27. The Tribunal asked the applicant how this affected him personally. He stated that the RSS threatened them not to do that kind of work. He stated that he was threatened and they even went to his home and told his family to tell him to stop doing this community work. He stated that he was threatened for 5 or 6 years prior to coming to Australia (in 2015). The Tribunal finds this evidence to be implausible.

28. In his statement dated 27 March 2019, the applicant claimed that “the Hindu fundamentalist group RSS threatened to kill me over a disputed land”. (sic) This is a new claim that was not made in his visa application. The Tribunal finds this claim to be implausible as he was not the owner or tenant of the land. This is also not consistent with his evidence to the Tribunal that he was asked or “threatened” to stop doing charity work. This inconsistency in his evidence and his inability to elaborate on the “torture” he claims to have been subjected to raise concerns in relation to his credibility and the veracity of his claims.    

29. Third, in his application for a Protection visa, the applicant claimed that in July 2014 he was attacked by twenty members of RSS and they tried to kill him. He claimed that, after this incident, he could not stay in his city or go anywhere because there was a threat to his life. In his statement dated 27 March 2019 filed with the Tribunal, he stated that, in July 2014, members of the RSS, “attacked to kill me.”

30. In his visa application, the applicant stated in response to question 81 ‘have you travelled to any country other than Australia (including in transit) in the last 30 years?’  that he was in [Country 1] between [June] 2014 and [March] 2015 ‘in transit to a third safe country’. His own evidence therefore indicates that he was not in India in July 2014 when he claims that twenty members of the RSS attacked him and tried to kill him. He has provided to the Department a copy of his passport which indicates that he arrived in [Country 1] [in] June 2014 and departed [Country 1] [in] August 2014. The Tribunal finds this to be probative evidence that he was not in India in July 2014. These issues raise concerns in relation to his credibility and the veracity of his claims

31. When the Tribunal raised this as an issue with the applicant, he responded that he may have provided an incorrect date. When the Tribunal pointed out that he provided this date to the Department and to the Tribunal, he did not respond. For the reasons that follow, the Tribunal does not accept that he made a mistake with the date.

32. Fourth, in his application for a Protection visa, the applicant claimed that he went to [Country 1] to hide as he feared for his life. He claimed that he returned to India to visit his family. He claimed that when he and his wife were taking his father to hospital he was recognised and was beaten up very badly. He claimed that he was injured but no one, including the Police, helped him. He claimed that, after this incident, he and his family feared for their lives.

33. During the hearing, the Tribunal asked the applicant a number of questions in relation to his interactions with the RSS but he made no mention of this incident or the incident in July 2014, when he claims to have been attacked by twenty members of the RSS who tried to kill him, despite being asked if he had any other problems with the RSS, whether they said or did anything else to him and whether he had told the Tribunal about all the problems he and his family had with the RSS. His failure to mention significant incidents like this in his evidence to the Tribunal raises concerns in relation to his credibility and the veracity of his claims. 

34. The Tribunal raised this as an issue with the applicant. He responded that he had nothing to say.

35. Fifth, in his application for a Protection visa, the applicant claimed that after he was attacked by twenty members of the RSS who tried to kill him he could not stay in his city or go anywhere because there was a threat to his life. He claimed that he has been to other States in India and people tried to get him because the RSS has a large network in India. This is not consistent with his evidence in response to question 82 in his visa application ‘Previous addresses’  where he stated that the only address at which he has lived in India was in his home Union Territory of Pondicherry.

36. This claim is also not consistent with the applicant’s evidence to the Tribunal that he initially lived with his parents in [Village] in the Union Territory of Pondicherry and, after his marriage, he lived with his wife and children in Karaikal in the Union Territory of Pondicherry.

37. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.

38. Sixth, during the hearing, the Tribunal asked the applicant whether he had travelled to any other country or countries other than Australia and [Country 1] and he answered no. In his application for a Protection visa, in response to question 81 ‘have you travelled to any country other than Australia (including in transit) in the last 30 years?’  he stated that he also travelled to [Country 2] between [December] 2012 and [January] 2013 to visit a relative. He has filed with the Tribunal a copy of the Department’s Decision Record dated 24 March 2016 which indicates that during his interview with the Department he stated that he has also travelled to [Country 3] and [Country 4].

39. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.

40. Seventh, the Tribunal wrote to the applicant on 7 March 2019 and invited him to appear before the Tribunal on 3 April 2019 to give evidence and present arguments relating to the issues in his case. In the letter, he was requested to bring his passport or passports to the hearing. He failed to do so.

41. During the hearing, the applicant gave evidence that the only countries that he has travelled to are [Country 1] and Australia. He stated that he has not sought asylum in any other country other than Australia. He also stated that members of the RSS started threatening him 5 to 6 years before he left to come to Australia (in 2015). He has provided to the Department a copy of his passport which indicates that he went to [Country 2] [in] December 2012. Based on his evidence, members of the RSS would have been threatening him at the time he visited [Country 2] yet he did not seek asylum in [Country 2]. His failure to do so raises concerns in relation to his credibility and the veracity of his claims.

1. When the Tribunal raised this as an issue with the applicant, he responded that he did go to [Country 2] and returned. He stated that he has his passport at home. He stated that he did not read the hearing invitation carefully. He stated that he can provide his passport to the Tribunal after the hearing. This response does not address the issue raised with him and the Tribunal does not find it to be persuasive.

2. Eighth, in his application for a Protection visa, the applicant claimed that after he was attacked by twenty members of the RSS who tried to kill him in July 2014 he went to [Country 1] to hide as he feared for his life. During the hearing, he gave evidence that he has been to [Country 1] once. He stated that his wife has distant relatives in [Country 1] and he just stayed there. He stated that he did not work in [Country 1].

3. The applicant’s evidence to the Tribunal is not consistent with his evidence in response to question 85 in his application for a Protection visa ‘Give details of all employment and unemployment since birth’ where he responded that he worked as [an Occupation] at a [workplace] in [Country 1] from June 2011 to August 2011 and as [an Occupation] in [another workplace] in [Country 1] from November 2013 to March 2015. Further, his response to question 85 is not consistent with his response to question 81 ‘have you travelled to any country other than Australia (including in transit) in the last 30 years?’ where he responded that the reasons why he was in [Country 1] between [September] 2012 and [December] 2012 and between [June] 2014 and [March] 2015 was because he was “in transit to a third safe country’. 

4. The applicant’s evidence to the Tribunal is also not consistent with his passport (which he provided to the Department) which indicates that he visited [Country 1] on three occasions. It indicates that his first visit was from [September] 2012 to [December] 2012, his second visit was from [June] 2014 to [August] 2014 and his third visit was from [October] 2014 to [March] 2015.

5. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.

6. Ninth, the applicant’s conduct is not consistent with his claims. He has provided to the Department a copy of his passport. This indicates that he returned to India from [Country 1] [in] August 2014 and departed India [in] October 2014 for [Country]. His evidence in response to question 82 in his visa application ‘Previous addresses’  indicates that he lived at his home in Karaikal when he returned to India after his first trip to [Country 1]. His voluntary return to India and the fact that he lived in his family home after he returned to India raise concerns in relation to his credibility and the veracity of his claims.

7. Tenth, the applicant gave evidence to the Tribunal that when he was in [Country 1] he found out that he could seek asylum in Australia. He stated that he came to Australia to seek asylum. The records of the Department indicate that he arrived in Australia [in] March 2015 as the holder of a [temporary] visa. He did not apply for a Protection visa until 25 May 2015. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he came to Australia for the purpose of seeking asylum here and feared serious harm or significant harm on his return to India he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. The Tribunal noted that his delay in applying for protection raises concerns about his credibility and the veracity of his claims.

8. The applicant responded that when he came to Australia he did not know anyone here. He stated that he approached people to help him and this took some time. He stated that this is why he delayed lodging his application for a Protection visa. The Tribunal does not accept this explanation. His evidence is that he found out whilst he was in [Country 1] that he could apply for asylum in Australia. The Tribunal would expect him to have made inquiries and obtained information about how he could apply for protection prior to coming to Australia. Further, he has proved himself to be a resourceful person in being able to organise accommodation and employment in Australia so the Tribunal does not accept that he could not organize to lodge his application for a Protection visa earlier particularly when he claims that it was his roommate who helped him to prepare his visa application.

9. The Tribunal discussed relevant country information with the applicant. Country information from DFAT indicates the following:

   DFAT assesses that Muslims face a low risk of societal discrimination and violence.                    Incidents of communal violence in the mid-2000s have not been repeated on a large             scale in recent years. Muslims suspected of cow butchery in the states listed above                    (Madhya Pradesh, Haryana, Jharkhand, Gujarat and Uttar Pradesh) may be   targeted, however incidents while widely reported have not affected the day-  to-day lives of most Muslims. DFAT assesses that Muslims in other parts of India   face a low level of official and societal discrimination.[1]

   [1] DFAT Country Information Report on India, 17 October 2018.

10. The Tribunal noted that as the applicant is not from one of the States referred to in the above country information this indicates that he would face a low level of official and societal discrimination. He responded that the previous government stopped RSS meetings and rallies were banned. He stated that the present government has given them permission to do so and for this reason minorities live with fear. He stated that they have meetings wherever Muslim majorities live.

    Section 438 Certificate

11. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained in two pages on his file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs. The Tribunal informed him that the information subject to the s.438 Certificate is two checklists. The Tribunal informed him that the s.438 Certificate appears on its face to be invalid. The Tribunal invited him to make submissions on the validity of the s.438 Certificate and he responded that he did not know what to say.

12. In light of the Federal Court decision in MZAFZ v MIBP[2], the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    [2] MZAFZ v MIBP [2016] FCA 1081

13. The Tribunal has had regard to the Human Rights Watch World Report 2019: India provided by the applicant. He has not identified any specific information in that Report that is relevant to his claims.  

14. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on India dated 17 October 2018 and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

15. Having considered all the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

16. The Tribunal accepts that the applicant was born on [date] at [Village] in the Union Territory of Pondicherry in India. The Tribunal accepts that he got married [in] September 1996 and has [children] of his [marriage]. The Tribunal accepts that after he left school in [year] he worked on his family farm. The Tribunal accepts that he then worked in a [workplace] in [Village] for a few years. The Tribunal accepts that after his marriage he did odd [jobs].

17. The Tribunal does not accept that the applicant has travelled to [Country 1] once. The Tribunal finds that he travelled to [Country 1] on three occasions and was in [Country 1] between [September] 2012 and [December] 2012, [June] 2014 and [August] 2014 and [October] 2014 and [March] 2015. The Tribunal does not accept that he did not work in [Country 1]. The Tribunal finds that he worked in [two workplaces] in [Country 1]. The Tribunal does not accept that he has only travelled to [Country 1] and Australia. The Tribunal finds that he travelled to [Country 2] [in] December 2012 and was there until [January] 2013. The Tribunal accepts that he did not claim asylum in [Country 2]. The Tribunal accepts that he may have also travelled to [Country 4] and [Country 3].

18. The Tribunal finds that the applicant voluntarily returned to India from his various trips overseas and that he lived with his wife and children in Karaikal on his return to India.

19. The Tribunal does not accept that the applicant was a member of TNMDO or TMMK. It follows that the Tribunal does not accept any of his claims that flow from that and rejects them in their entirety. Alternatively, the Tribunal does not accept that he was a member of a political party and that he undertook political activities on behalf of that party. The Tribunal does not accept that he was or is of adverse interest to the RSS.   

20. In view of the above findings, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will suffer serious harm or significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.

    Does Australia have protection obligations to the applicant under the refugee criterion?

21. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his religion, actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Does Australia have protection obligations to the applicant under the complementary       protection criterion?

22. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

23. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.

24. Accordingly, the Tribunal is not satisfied that that 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

25. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

26. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons

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.

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36Protection visas – criteria provided for by this Act

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(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.

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