1605549 (Refugee)

1605549 (Refugee) [2019] AATA 3362 (22 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605549
COUNTRY OF REFERENCE:                   India
MEMBER:Denise Connolly
DATE:22 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 22 May 2019 at 4:04pm
CATCHWORDS
REFUGEE – protection visa – India – political connections – father was a member of political party – claims of threats by political opponents – fabricated these claims – voluntary return – did not seek protection in another country – does not accept claims about threats of harm – mental health issues – no evidence provided – ability to secure employment in India – inconsistent and conflicting information – non genuine document – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424AA, 437,438, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 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 on 10 February 2015. The delegate refused to grant the visas on the basis that she was not satisfied the applicants were persons in respect of whom Australia has protection obligations.
There is a s.438 certificate on the Department’s file certifying that folios 114, 121 to 127 and 140 should not be disclosed because it would be contrary to the public interest as the folios contain “information relating to an internal working document and business affairs”. Folio 114 contains information about the information used to establish the applicants’ identities, which are not in dispute. Folio 121 is an email sent from the Department to the applicant’s representative. Folio 122 is an internal Departmental email regarding the particulars of the first named applicant’s interview with the delegate. Folios 123 to 127 are case notes regarding information provided by the applicants in relation to their [Temporary Visa 1] applications, including a Certificate of business registration, and an assessment of the genuineness of those documents. Folio 140 is a template entitled Disclosure decision checklist which records there are no s.437, or s.438(1)(b) documents on the file but there are s.438(1)(a) documents, the folios identified. Having considered the certificate and the material the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material. Accordingly the Tribunal finds the certificate is not valid. While the Tribunal is of the view the certificate is invalid it still advised the applicant of its existence at the hearing.
There is adverse information referred to, regarding the Department’s assessment of a Certificate of business registration, provided with the [Temporary Visa 1] application, which the [City 1] Government office declared to be non-genuine. The other documents provided with the [Temporary Visa 1] application were considered to be genuine. As recorded below, this issue was discussed with the applicant at the hearing. The Tribunal is not satisfied that the disclosure of this information would be contrary to the nation or public interest. The Tribunal is of the view that if there are any concerns regarding the disclosure of the identity of the government officer whom provided the information, those details can be redacted.
CLAIMS AND EVIDENCE
Evidence to the Department
When making the visa applications the applicants provided the following information. The first named applicant (the applicant) was born on [date] in [Village 1], Haryana, India. He is a Sikh. His occupation in India was [Occupation 1]. He married the second named applicant [in] February 2008 in Haryana. He speaks, reads and writes in Hindi and Punjabi. He completed year 8 in [date]. His parents reside in India. He has been living in [City 2] since travelling to Australia [in] December 2014 as the holder of [Temporary Visa 1]. He previously travelled twice to [Country 1] and stayed from [December] 2009 to [March] 2010, and [December] 2012 to [April] 2013. He also travelled to [Country 2] in March 2012. The second named applicant was born on [date] in [Village 2], Haryana. She is also a Sikh. Her parents and brother reside in India. She also travelled to [Country 1] in December 2009 and December 2012. She claims to have never worked prior to coming to Australia. She is not making her own claims for protection. She and the applicant have a child, the third named applicant, born in India on [date]. Copies of the applicants’ Indian passports were provided with the visa application.
The applicant claims to fear serious harm in India from [Mr A] and his followers. [Mr A] is [a member] of the Indian National Lok Dal in the applicant’s area. The applicant’s father was very close to [Mr A] and helped him in his political activities. However his father realised that [Mr A] was engaging in corrupt practices and decided to leave the party and join the Congress Party. Because of the applicant’s father’s popularity with farmers in the area [Mr A] considered him to be his political enemy. They started facing intimidation and threats from [Mr A] and his followers. The applicant’s father advised him to go to a foreign country and he helped him apply for his [Country 1] visa in 2009.
The applicant claims that [in] November 2009 his father was killed in an accident which he suspected was orchestrated by [Mr A]. His family filed a police complaint and requested the police initiate criminal proceedings against [Mr A]. However due to his political connections and influence [Mr A] avoided criminal prosecution. The applicant decided to continue to pursue justice. [Mr A] and his gang continued to threaten and intimidate him. Due to the pressure his mother died of [Medical Condition 1]. [Mr A] and his followers focused on the applicant and try to intimidate him to withdraw the charges. During the period, he visited [Country 1], in 2009 and 2013, and stayed there for some time. However he returned to continue with his [Occupation 1] activities while seeking justice for the death of his father. [In] November 2014 he escaped an accident which reminded him of his father’s accident. After that he decided to leave the country to save his life. He is suffering from mental depression due to the events in India. He fears he and his family will face serious harm and possibly be killed. He does not believe the authorities will be able to protect him as [Mr A] has money and political connections. He fears if he relocates in India he will continue to face harm.
As indicated above there is documentation on the Department’s file indicating that the delegate considered information provided with the applicant’s [Temporary Visa 1] application. It includes information that the applicant has a daughter who continues to reside in India. The particulars of the daughter were not included in the protection visa application. It was stated in [Temporary Visa 1] application she would not be travelling with the applicants due to her schooling.
The Tribunal has listened to the recording of the interview with the delegate held on 11 March 2016. During the interview the representative noted that there had been a minor typographical error in the applicant’s protection visa application where he indicated that his family continue to reside in India. The representative told the delegate that the applicant’s parents are deceased.
During the interview the applicant provided the following information. He confirmed that he was living with his wife and son in [City 2]. He indicated he attended school until year 12 but failed that year. Prior to coming to Australia he undertook [a certain line of] work and also had a shop [named] “[Business name 1]”. It had been his father’s shop. He became the proprietor in 2008 and sold the stock and the business 3 or 4 months before departing India for Australia. It was a small scale business.
The applicant claimed that since moving to [City 2] he had stayed home due to stress but his wife was working casually. He looks after their child. Their expenses are covered by his wife’s income. She works [in an occupation] 3 or 4 days a week earning about [amount]. He finds it difficult to work because he feels stressed. He saw a doctor about his health a couple of times. The delegate asked the applicant if he had any evidence in relation to his health. He did not. However he claimed that he could not work much because he felt very tired.
The applicant told the delegate that he has only one child, his son, the third named applicant. He claimed that he came to Australia to escape from India. He claimed his problems started when his father was alive, at the start of 2007. He first thought he needed protection in Australia in January or February 2015. He claimed that he could not return to India because his father and [Mr A] were in conflict and [Mr A] was responsible for his father’s death. After his father’s death, they came after him and started threatening him. His father and [Mr A] had been in the same party but then his father joined a different party and they became enemies. They threatened him and his mother. He left the area and went somewhere else but they kept threatening him. They attacked his car with a hockey stick but he escaped. [In] November 2014 they attacked him.
The delegate asked the applicant if he went to the police after he was attacked [in] November 2014. He did not go to the police because they were supporting the others, not him. The police did nothing when his father died. In July 2014 he was threatened by [Mr A] in his own house. He was first threatened by [Mr A] in October 2012. Before that [Mr A] threatened his father. He claimed that in May 2012, after his father’s death, he was beaten a couple of times by 4 or 5 people.
The applicant then claimed that they have also threatened to kill his son and finish his family. He claimed that they have been making these threats since 2007 and in the fourth or fifth month of 2008 the threats became more serious.
The delegate asked the applicant if he had any evidence to support his claims. The applicant stated that there was no one in India to help him with this.
The delegate noted that the applicant had travelled to [Country 1] for [number] months in December 2009. She asked the applicant if he sought protection while he was there. He said that he did not seek protection in [Country 1] because his mother was still alive. He claimed that there was no one else apart from him to look after her. He did not claim protection in 2012 because he thought his situation in India might improve. The delegate noted that he travelled to [Country 2] for [number] days in March 2012. The delegate explained that his voluntary returns to India may indicate he did not have a fear in India. The applicant claimed that he was in hiding in India. The delegate noted that he had stated in his visa application that he only ever resided at one residential address in India. She noted in those circumstances it would have been easy to find him in India if they wanted to harm him. He claimed that he lived in hiding. He went into hiding each time he received a threat. Before his father died they had not attacked him, only after his mother and father died. The delegate noted that this was inconsistent with his earlier evidence.
The delegate raised with the applicant that he did not seek protection on the 2 occasions he visited [Country 1], in 2009/10 and 2012/13, and this indicates he did not have a fear of harm in India. He indicated he thought they were responsible for his father’s death but they would not do anything to him. He thought time had passed and they would not come after him but still they did. The delegate noted that the applicant claims were vague.
The delegate noted that in his [Temporary Visa 1] application the applicant claimed to have a daughter in India. However in his protection visa application and in the interview he claimed to have only a son. The applicant claimed that his friend may have made a mistake when completing the [Temporary Visa 1] application form.
The delegate explained to the applicant that the certificate of business registration provided with the [Temporary Visa 1] application had been found to be non-genuine. The applicant claimed his shop is registered under the name ‘[Business name 1]’. The delegate asked the applicant if the registration certificate was genuine. The applicant stated that he owned the business. The delegate explained that the information provided in the [Temporary Visa 1] application raised concerns about his credibility as a witness and the reliability of his claims. The applicant stated that he was under pressure and he and his friend incorrectly completed his [Temporary Visa 1] application. The delegate did not accept that the applicant would make such errors.
The delegate raised with the applicant the country information indicating that India has a effective state protection system. The delegate indicated that she had not seen evidence to suggest that the authorities would withhold state protection. The applicant stated he reported to the police 3 or 4 times but they did not assist him. He claimed that all of his evidence provided so far is true however he had no documentary evidence because he left India in a hurry. The delegate noted that the applicant had sold his business before he came to Australia. He claimed he needed the money from the business to come to Australia.
The delegate raised the issue of relocation. The applicant claimed that he tried to go to Himachal for 15 to 20 days but they found him.
The delegate was not satisfied the applicant is a truthful witness. She did not accept that he had suffered persecution in India in the past because she found his oral evidence to lack credible detail. She noted that while he claimed his father was killed [in] November 2009, he travelled to [Country 1] [in] December 2009 and stayed there for [number] months without seeking protection. She noted he voluntarily returned to India [in] March 2010. She found the fact that he did not seek protection in [Country 1] indicates that he had no genuine fear of harm in India. She also noted he travelled to [Country 2] [in] March 2012 and voluntarily returned to India [in] March 2012 indicating that he had no genuine fear of harm in India. She also noted that he travelled to [Country 1] [in] December 2012 and remained there for [number] months until he voluntarily returned to India [in] April 2013 and did not seek protection. She formed the view this demonstrates he did not have a genuine fear of harm in India and that he accepted Indian state protection.
The delegate also noted that in his [Temporary Visa 1] application the applicant stated he had a daughter remaining in India. She noted that at interview, apart his son, he indicated he had no other children. She noted his only explanation when this inconsistency was put to him was that his friend who helped him with the [Temporary Visa 1] application must have made a mistake. She did not accept this explanation as credible. She also noted that the post conducted checks and found that he had provided a non-genuine business registration document in his [Temporary Visa 1] application. His only response to that information was that he did not know what had been submitted. She did not accept as true that the applicant had no idea what documents were submitted in his own [Temporary Visa 1] application. She found that the applicant had submitted a fraudulent document in his [Temporary Visa 1] application and that this cast serious doubt on his credibility. The delegate referred to the applicant’s claims to have mental health problems. However she noted no supporting evidence was provided and did not accept as credible the applicant’s claim that he could not afford to go to a doctor in [City 2]. She noted that the country information indicates that at least in bigger cities in India, there are general and specialised healthcare facilities available.
The delegate concluded that the applicant’s protection claims are not credible and that his family circumstances were not as he had claimed. She found that he had provided inconsistent and conflicting information in his [Temporary Visa 1] and protection visa applications. She was not satisfied that he feared being killed by [Mr A] or his gang, or that he believes the police would not protect him and his family. She was not satisfied there is a real chance of persecution for one or more of the reasons mentioned in the Act. Nor was she satisfied that he met the complementary protection criteria. She formed the view that the applicant is not a person in respect of whom Australia has protection obligations and therefore refused his application, along with those of the second and third named applicants.
Evidence to the Tribunal
The applicant provided to the Tribunal only the notification of refusal of application for protection visa. He did not provide the delegate’s reasons for her decision.
The applicant appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The second and third named applicants also attended the hearing but did not give evidence. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant’s representative also attended the hearing.
The applicant presented to the Tribunal his passport issued [in] 2013 confirming that he is a citizen of the Republic of India.
The Tribunal explained to the applicant that his hearing was an opportunity for him to give evidence and present arguments as to why he believes he meets either the definition of refugee or the complementary protection criteria. The applicant confirmed that the second and third named applicants are relying on his claims and do not have their own claims.
The Tribunal also explained to the applicant that the Department had put on the file a s.438 certificate. It explained to the applicant that it was of the view the certificate was not valid. It went through the material the subject of the certificate. Neither the applicant nor his representative had any comment to make in regards to the certificate.
The Tribunal asked the applicant about his family members. He indicated that he has a wife, the second named applicant and a child born [date], the third named applicant. The Tribunal asked the applicant if he has daughter and he denied this. It asked about his family members in India. He indicated that he had no one in India as his parents had died. He does not have any brothers or sisters. His wife’s parents live in [Village 2] and her brother is [details deleted]. He is married with 3 children. His wife’s parents [work in an occupation].
The Tribunal noted that the applicant had been [employed in Occupation 1] and asked what happened to the [business]. He indicated that the [business] was sold because of the fighting. It was sold 7 months before he came to Australia and he was paid [amount]. He said this roughly converted to [amount].
With respect to his education the applicant indicated that he finished year 9 at a school in town but did not complete year 10.
The Tribunal noted that there was information on the Department’s file indicating that the applicant had previously informed the Department that he has a daughter. The applicant stated that his friend prepared the documents for the [Temporary Visa 1] application and he was not aware of what was provided. The Tribunal questioned whether the applicant has a daughter. The applicant indicated that after he married, his wife did not have children and this was the cause of some tension so they adopted her brother’s daughter. However they then had a son so they gave the daughter back. The Tribunal noted that the Department had recorded that it had been told during a telephone conversation with the applicant that his daughter had previously travelled with him to [Country 1]. It asked why he had denied having a daughter in the interview with the delegate. The applicant denied receiving a telephone call from the Department. He thought his friend took that call. He claimed that his friend had filled out the forms for him and had asked for the documents which he provided. The Tribunal noted that this did not explain his oral evidence in which he denied having a daughter. The Tribunal also questioned why his friend would not know that he had a daughter. It noted that, if that was the case that the friend did not know about the daughter, how did he know to tell the Department that the daughter had travelled to [Country 1] with the applicant. The applicant indicated that the friend found out about the daughter when he provided his passport when the visa was granted. The Tribunal asked about the identity of the friend. He indicated that the friend, [Mr B], was from the same town as the applicant. He was not a travel or migration agent. The Tribunal questioned why the applicant gave this friend the documents for the visa application. He indicated the friend was knowledgeable. He was the son of his father’s friend. He knew him for 2 or 3 years before he came to Australia. The Tribunal noted that suggested that he knew him when he went to [Country 1] with his daughter. The applicant indicated that at that stage he did not know him very well. He indicated that [Mr B] talked to the Department on his behalf and pretended to be the applicant.

The Tribunal asked the applicant about his business in India. He indicated that he ran the business after his father died. He was working in the business before his father died but only occasionally. It was his father’s business. At other times he was [working in Occupation 1]. He did not have a business partner. He did not know much about the business until after the death of his father. The Tribunal asked when that was. He indicated it was in 2010. He believed his father registered the business. The Tribunal explained that the Department made enquiries about the Certificate of business registration and found that it was not genuine. It questioned where he got that certificate from. The applicant indicated that there were people working in his company and they arranged it for him. He did not know much about the business. The Tribunal noted that he had worked in the business for 4 years at that stage and questioned whether he did not know much about it. He indicated that before he came to Australia the business was going down. He did not know that the document was non-genuine. The Tribunal asked why he obtained the document. He indicated he wanted to proceed with the business. However he sold the business 7 months before he came to Australia. The Tribunal questioned why in those circumstances he gave the document to the Department indicating he owned a business. He indicated that he had sold some of the businesses [goods] but not all of the business. When asked about the timing of that sale he indicated it was 6 months before he came to Australia. He then indicated that some of the [goods] were sold in December and some after he arrived in Australia although he did not know about those. The Tribunal questioned who sold those [goods] after he came to Australia. He indicated it was an agent and he got nothing from it. He was selling the business because he was not returning to India because the fighting caused him a lot of stress and he feared for his life.
The Tribunal asked the applicant about the sale of the [business]. He indicated it was sold 7 months before he came to Australia. The Tribunal noted that he had provided land documents with respect to [Temporary Visa 1] application and they were verified and found to be genuine by the Department. The applicant indicated that the land documents related to his wife’s property. She had a city shop. He then indicated he had [the business] in [Village 1]. He confirmed that he still has that [business].
The Tribunal asked the applicant why he does not to go back to India. He indicated that he is still afraid of the people. He had injuries from assaults. That is the only reason he does not want to return to India. The Tribunal asked the applicant who he fears in India. The applicant indicated he fears [Mr A] as they had a fight. The Tribunal asked the applicant what he thinks [Mr A] will do. He indicated he believes that he may attack the applicant again.
The Tribunal asked the applicant about the circumstances of his father’s death. He indicated that his father died [in] September 2009. He indicated that he was driving a [car]. He collided with a truck and died as a result of the accident. The Tribunal noted that the applicant had stated in the visa application that his father died in November 2009. It asked why his evidence about the timing of his father’s death was inconsistent. He indicated that he was sure about 2009 but he was confused about the month. He then indicated that maybe his father had died in November.
The Tribunal asked the applicant what he did after his father’s death. He indicated that he and his father had been assaulted 2 or 3 times. He indicated that after the accident he and a neighbour went to the police to report it. His relatives told him that there was too much pressure on him. The Tribunal questioned which relatives as he had indicated previously that he did not have relatives in India after his parents died. He indicated it was a distant relative. He indicated they went to the [Police]. He claimed his mother was present. The police did not take any action because [Mr A] bribed them. Tribunal questioned how he knew that. He indicated his relatives told him.
The Tribunal asked the applicant about his mother’s death. He indicated that she died in 2010. She was very stressed by the circumstances and she had [Medical Condition 1].
The Tribunal asked the applicant to describe what happened in 2007. The applicant indicated that his father and [Mr A] supported the same political party but that party split and they became opponents. [Mr A] started threatening his father. There were 2 or 3 personal clashes when [Mr A’s] gang threatened to kill them. The Tribunal asked the applicant to describe those events. The applicant indicated that when his father went outdoors they attacked him. They also attacked him on the road. They came to his home where he used to live with his [parents]. Once or twice in 2008 he went with his father to the city where they were approached by boys who had been drinking who showed them guns and threatened them. The Tribunal asked the applicant what he did when that happened. The applicant indicated that there were a lot of people gathered in the area. They ran away. He got the car and went to pick up his father and drove away.
The Tribunal asked the applicant about the incident in July 2014. The applicant indicated that after the death of his father they threatened him and attacked him twice. They hit him on the head and on the back. He still has pain. The Tribunal asked if he went to the police. He said he did not go to the police because they do not listen.
The Tribunal asked the applicant when he was first threatened by [Mr A]. He indicated that it was after his father’s death. He reported it to the police. He thought it was in about 2009 then clarified that and said it was in 2010. The Tribunal noted that the delegate recorded that he said he was first attacked in 2012. He indicated that he was attacked more than once. He went to [Country 1] and thought that the situation would normalise.
The Tribunal asked the applicant when he first approached the police and gave statements about the problem. He indicated it was when his father died in November 2009. The Tribunal questioned whether he ever went police again. He indicated that his mother went once but he didn’t go. The Tribunal noted that the delegate had recorded that he had approached the police again after the first approach. The applicant indicated that his mother wanted him to go but he did not go inside the station. The Tribunal asked why he went to the police in 2009. The applicant referred to an attack in 2007 when his father would have gone to the police. The Tribunal asked if a First Information Report was made. He did not know. He thought that whatever was required would have been done by his mother.
The Tribunal noted from the applicant’s oral evidence to the Tribunal that he did not appear to be very involved in dealing with the police. The applicant indicated this was because they always favoured them. The Tribunal explained to the applicant that this may cast out on his claim to have been fearful of [Mr A] and his gang. The applicant indicated that because of the fear nobody would go with them and no action was taken by the police. The Tribunal noted that he had previously said that the neighbour went with him to the police. The applicant indicated that only happened after his father died.
The Tribunal noted that the delegate found there had been inconsistencies in his evidence. It noted when she asked the applicant when he had first been threatened by [Mr A] he indicated it was in October 2012, but that [Mr A] had previously threatened his father. However the Tribunal noted that the applicant had also indicated that after his father’s death he had been beaten in May 2012. He had also indicated that there had been threats directed at him since 2007 and in the fourth or fifth month of 2008 the threats became more serious. The Tribunal noted the applicant appeared to give 3 different dates for when he was first threatened by [Mr A]. It asked if he had any explanation. The applicant indicated that the first assault was small but on 2 occasions he suffered bigger assaults. Once he suffered an injury to his head. He thought his evidence was inconsistent because of tension in his mind.
The Tribunal noted that the applicant had gone to [Country 1] on 2 occasions, in December 2009 and December 2012, and that he had returned to India which suggested he was not fearful in India. It asked the applicant why he returned to India in 2013 if it was the case that he was fearful. He indicated that his wife was under pressure. He had gone because his mother thought that if he went away the trouble would subside. That is why he went to [Country 1] for [number] months. Then he went back to India to see if things had settled down. The Tribunal explained that it may form the view he was not fearful in India as he had returned from [Country 1] voluntarily. He indicated that he did not want to leave his mother and other family. His mother died in 2010. The Tribunal asked why he did not apply for protection in [Country 1] in 2012. The applicant indicated that he did not want to stay overseas. He thought the matter would have subsided in India. He was thinking he would not suffer any more assaults.
The Tribunal noted that it appeared the applicant went to [Country 1] within a month of his father’s death. It asked why he would leave his mother in those circumstances. He indicated that his mother had suggested he should go. The Tribunal noted that he had previously indicated his father had thought he should go overseas. The applicant claimed that it was not his father; it was his mother who thought he should go.
The Tribunal noted that the applicant had raised an issue concerning his mental health. It asked if he had any evidence of the condition or treatment. The applicant indicated he has been suffering from stress which causes him to not remember things. The Tribunal asked if the applicant has been working. He indicated that he has been undertaking [work] sometimes, depending on what he can get. He works about 3 or 4 days a week [in an occupation].
The Tribunal explained to the applicant that it needed to give him an opportunity to comment on or respond to information it considers would be the reason, or part of the reason, for affirming the decision under review. It explained that it had not made its findings yet. The Tribunal provided particulars of the information. It explained the relevance of the information to the review and the consequences if the information is relied on. It also advised him that he may seek additional time to comment on or respond to the information and it would consider whether it is reasonable to give him more time. The Tribunal reassured the applicant that the relevant particulars had already been discussed during the hearing. The applicant indicated he did not understand. The Tribunal decided to have a short break to allow the applicant to consult his migration agent, who was present at the hearing, about the process. When the Tribunal reconvened the applicant confirmed that he had had an opportunity to discuss the process with his migration agent. The Tribunal then provided to the applicant the particulars of the information, explained its relevance and the consequences if relied on.
The Tribunal explained that there was information provided to the Department in his [Temporary Visa 1] application stating that he has a daughter. The Tribunal explained that this is relevant because he denied having a daughter in his interview with the delegate and omitted to mention her in his protection visa application. The Tribunal also explained that the applicant had not indicated previously that there had been an adoption of a niece. It explained that his previous explanation for the mention of a daughter was that his friend had made a made a mistake when filling out the [Temporary Visa 1] application. The Tribunal explained that the information is relevant because it demonstrates the applicant has given inconsistent information about the daughter. It explained the information provided in the [Temporary Visa 1] application, that the applicant had a daughter, is inconsistent with the oral evidence he gave to the delegate, that he did not have a daughter. It explained that the information is relevant because it is inconsistent. The Tribunal explained that if it relied on the information it may form the view that the applicant’s evidence is not reliable and it then may not accept that it can rely on his claims. It explained that if it made those findings it would then affirm the Department’s decision.
The Tribunal also provided the applicant with particulars concerning the Department’s enquiries about the Certificate of business registration provided with the [Temporary Visa 1] application. The Tribunal explained that the Department sought to have the Certificate of business registration verified and contacted [City 1] Government office and spoke to [Official 1]. The Department explained that the applicant had provided a ‘Form A’ with his [Temporary Visa 1] application. [Official 1] advised the Department that a Form A would not have been used in the applicant’s circumstances. The Tribunal explained to the applicant that the Department provided [Official 1] with a copy of the Certificate and the [Official 1] advised the Department that the Certificate was non-genuine. The Tribunal explained that if it relied on this information it may find that the applicant had provided to the Department a fraudulent document in support of the visa application. It explained that it may then find that the applicant is not a credible witness and it may then find it cannot accept his claims. It explained that if it made those findings it would then affirm the Department’s decision.
The Tribunal also provided the applicant with particulars concerning oral evidence he had given to the delegate about when he was first threatened by [Mr A]. It explained that when asked by the delegate he indicated it was in October 2012 but that he subsequently indicated in that interview that there had been threats since 2007. The Tribunal explained the information is relevant because it may find his evidence is inconsistent and, if relied on, it may cast doubt on the claims. It explained that if it relied on the information and made those findings it may find it cannot accept his claims. It explained that if it made those findings it would then affirm the Department’s decision.
The applicant sought additional time and said that he wished to provide his response in writing. He indicated that he forgets things and that he was nervous. He also indicated that he wanted to prepare his story which he can explain in writing. He indicated that for 6 or 7 years he has had mental confusion and has been forgetting things. He wanted to relax and remember everything. The Tribunal noted it had not seen any supporting evidence as to why the applicant would have memory problems. However, to be fair, it agreed to give the applicant one week, until close of business 1 May 2019, to provide his written response.
The Tribunal asked the applicant if he had any other evidence to give. He indicated he had nothing else to tell the Tribunal. It asked if he wanted the Tribunal to talk to his wife. He indicated she had nothing to do with it and the Tribunal did not need to talk to her.
After the hearing, on 24 April 2019, the applicant’s representative requested that the hearing recording be provided. The case officer was on leave and did not respond to the request. On 29 April 2019 the representative wrote to the Tribunal requesting that a copy of the hearing recording be provided as it was required to prepare responses regarding concerns raised at the Tribunal during the hearing. The representative also requested that the Tribunal grant an extension of time, until 8 May 2019, to provide the written response. On 29 April 2019 the Tribunal provided to the applicant a copy of the hearing recording. On 30 April 2019 the Tribunal wrote to the applicant advising that it agreed to wait until close of business 8 May 2019 for the applicant’s post hearing comments/response.
On 8 May 2019 the applicant provided the following written response. In relation to the issue of the daughter the applicant stated that he does not have any daughter but has a son. He stated before his son was born he and his wife did not have a child from long time. The doctors advised that his wife would not be able to conceive naturally and asked them to undergo medical treatment. On a mutual understanding with his brother-in-law, the daughter was allowed to live with them and they started to consider her as their own child. People in the area also looked at her as their daughter. When they applied to [Country 1] they mentioned that they had a daughter. Then they applied for [Temporary Visa 1] to come to Australia and mentioned that they had a daughter. There was no bad intention about it. However when they came to Australia and the representative asked them to provide family details, they mentioned only that they had a son. The reason for that was by that time the brother-in-law said that since they had a son he would take his daughter and not leave her with them. They agreed to that. When his friend lodged his [Temporary Visa 1] application, he put down his own phone number for correspondence. The applicant had no idea what transpired over the phone between the friend and the Department.
With respect to the business registration certificate, the applicant stated that it was his father’s business and after his death he took care of the business. A worker who worked with his father said that he should take a licence. Since he was new to the business he did not know how to obtain it so he sought the worker’s assistance. He advised the applicant that he had registered the business and brought him the licence which he genuinely believed to be legitimately obtained. He gave the certificate to his friend when the [Temporary Visa 1] application was lodged. The applicant stated that he had no bad intention in this regard and requested the Tribunal consider his situation and recognise that he and his family are refugees.
The applicant did not have any comment to make with respect to the particulars provided in regards to his oral evidence about when he was first threatened by [Mr A].
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
Nationality
The applicant presented to the Department and the Tribunal he is Indian issued [in] 2013. He also provided to the Department Indian passport for the second and third named applicants. On the basis of those passports the Tribunal is satisfied the applicant is an Indian national and will assess his claims on this basis. Is also satisfied the second and third named applicants are Indian national. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any other country other than his country of nationality.
Does the applicant have a well-founded fear of persecution?
The Tribunal must consider whether the applicant has a well-founded fear of persecution in India for one or more of the reason set out in s.5J(1)(a). The applicant claims he fears harm if he returns to India because of problems that he and his family have had with [Mr A]. Essentially he claims that his father had been a friend of [Mr A], a member of the Indian National Lok Dal (INLD), a political party in India, based in Haryana. The applicant claims that his father realised [Mr A] was engaging in corrupt practices and so he left the INLD and joined the Congress Party. [Mr A] then considered his father a political enemy. The applicant’s family started receiving threats from [Mr A] and his followers. The applicant also claims that his father was killed in an accident [in] November 2009 and he believes it was orchestrated by [Mr A] and his followers. He claims that a complaint was lodged with the police but they did not undertake any investigation. The applicant claims that due to [Mr A’s] political influence and connections he has managed to avoid criminal prosecution. The applicant continued to seek justice but [Mr A] and his gang continued to intimidate and threaten him and his family. The applicant claims that he was beaten and injured by [Mr A’s] gang. He claims that the stress caused his mother to have a [Medical Condition 1]. The applicant also claims that [in] November 2014 he escaped an accident which he thought was similar to the accident that killed his father. After that he decided to leave the country to save his life. He also claims that he has suffered from depression due to the events in India. In his written application he claimed that he fears returning to India because he believes he will be killed and the authorities will not protect him and his family. In his evidence to the Tribunal he indicated that he fears returning to India because he fears [Mr A] and believes that he may attack the applicant again.
In the visa application the applicant stated that he travelled twice to [Country 1], first [in] December 2009 and returned to India [in] March 2010, and then [in] December 2012 and returned to India [in] April 2013. He has claimed that he returned to India on the first occasion because he could not leave his mother. He has also claimed he returned to continue with [Occupation 1] while seeking justice for the death of his father. He claimed that on the second occasion he returned to India because he thought that the situation would normalise and his wife was under pressure.
In his written application the applicant claimed that he was suffering from depression. He indicated to the Tribunal that he had difficulty remembering things because of nervousness and mental confusion. As indicated to him at the hearing the Tribunal has not seen any supporting evidence as to why the applicant would have memory problems. It notes the applicant’s evidence that he has now been in Australia since [December] 2014 and that he has been undertaking [work] 3 or 4 days a week depending on what he can get. While the Tribunal takes into account that may be stressful to give evidence during the delegate’s interview and in the hearing, the Tribunal is not satisfied the applicant has demonstrated that he is so affected by depression, nervousness and mental confusion that he would not be able to remember the details of his own claims. He was able to respond to the Tribunal’s questions and only indicated he did not understand the Tribunal when it explained its duty under s.424AA, at which point the Tribunal briefly adjourned the hearing so that he could consult his migration agent. Overall the Tribunal is satisfied that, even if the applicant has been suffering from depression, nervousness and mental confusion he had a fair opportunity at, and after, the hearing to provide his evidence on the issues arising in his case.
Concerns about the reliability of the applicant’s evidence were raised with him at the hearing. The Tribunal gave the applicant an opportunity to comment on or respond to information it had obtained from the Department’s file indicating that, when making his [Temporary Visa 1] application to travel to Australia, he informed the Department that he had a daughter. However when asked about this by the delegate at the interview he denied having a daughter. Initially in his oral evidence to the Tribunal he denied having a daughter. He then indicated that he had previously adopted his brother-in-law’s daughter because his wife could not have children. However after the birth of their son it was decided that the daughter should return to the brother-in-law. The Tribunal has taken into account the applicant’s oral evidence and written response providing his explanation. The Tribunal however still has some concerns that the applicant was not being frank with the delegate and in his initial oral evidence to the Tribunal. In the Tribunal’s view the applicant was only prepared to admit to the Tribunal that the Department had been informed about the daughter when it was put to him that the Tribunal had seen that information on the Department’s file. Even then the applicant attempted to explain the inconsistencies in his evidence by claiming that his friend had filled out the forms, prepared the documents for the [Temporary Visa 1] application and talked to the Department. The Tribunal is not persuaded that this is the case. The Tribunal is concerned that the inconsistencies in this evidence raise some concerns about the reliability of the applicant as a witness.
The Tribunal also notes that the applicant provided to the Department a non-genuine document in the [Temporary Visa 1] application. When given an opportunity to comment on or respond to information that the Department had sought to have verified a Certificate of business registration and was advised by [Official 1] of [City 1] Government offices that the document was non-genuine, the applicant sought to put the responsibility on one of the workers in his father’s business. He indicated that he relied on people working in his company to arrange the certificate for him because he did not know much about the business. However the Tribunal notes that by that stage he had been involved in the business for 4 years. The Tribunal also notes from his written response that he gave the certificate to his friend when the [Temporary Visa 1] application was lodged. However he also told the Tribunal that he sold the business 7 months before he came to Australia. The Tribunal is not satisfied that the applicant was not aware that he had provided to the Department a non-genuine document. It has formed the view the applicant provided to the Department a non-genuine document in support of the [Temporary Visa 1] application. It is of the view this casts doubt on the applicant’s credibility.
The applicant did not comment on or respond to the particulars concerning his oral evidence given to the delegate about when he was first threatened by [Mr A]. When inviting the applicant to comment on or respond to the information, the Tribunal gave him clear particulars that in his interview with the delegate, when asked when he was first threatened by [Mr A], he indicated it was in October 2012 but that he subsequently indicated in that interview that there had been threats since 2007. The Tribunal also notes in his oral evidence to the Tribunal, when asked when he was first threatened, he thought it was in about 2009 then clarified that and said it was in 2010. The Tribunal is of the view the applicant’s evidence on this issue is inconsistent and casts doubt on the claims.
The Tribunal has considered the applicant’s claims that he and his family have been threatened, attacked and harmed by [Mr A] and his followers/gang because his father left the INLD and was popular with local farmers. He also claims that the stress caused his mother to have [Medical Condition 1]. It has concerns that his oral evidence to the delegate, regarding when he was first threatened by [Mr A], set out above, is inconsistent. On the evidence before it, it finds his claim, that his father was killed in an accident [in] November 2009 which he believes was orchestrated by [Mr A] and his followers, to be vague and speculative. He indicated his father died [when] he was hit by a truck. This may well have been the case however the Tribunal has concerns that in his oral evidence to the Tribunal he first indicated his father died in September 2009 and then he corrected this information when it was drawn to his attention that he claimed that his father died in November 2009 it is protection visa application. The Tribunal also has concerns regarding his claims that he lodged a complaint with the police but they did not undertake any investigation, and that due to [Mr A’s] political influence and connections he has managed to avoid criminal prosecution. The applicant has claimed that he is family continued to seek justice but [Mr A] and his gang continued to intimidate and threaten family. However he has also indicated that after his mother died he has no family in India. There is also no supporting evidence about his oral claims to have sought justice for his father's death. There is nothing before the Tribunal, except for the applicant’s oral assertions, to support the claim that his father died in a road accident, possibly orchestrated by [Mr A] and the police did not investigate. The Tribunal takes into account the applicant’s claim that he does not have supporting evidence because there was no one in India to help him with this. However it is of the view that, if he genuinely left India because of the problems he has described and he intended to seek protection in Australia because he feared serious harm, he would have brought supporting documentation with him. The Tribunal is of the view the inconsistencies in his evidence and the lack of supporting evidence cast serious doubt on these claims.
In his visa application the applicant has stated that he visited [Country 1] in the period [December] 2009 to [March] 2010. The applicant did not seek protection while he was in [Country 1]. He has indicated that he did not seek protection in [Country 1] because he could not leave his mother who was still alive at the time. The Tribunal questioned however why he left his mother [in] December 2009 so soon after his father’s death [in] November 2009. He indicated that his mother had suggested he should go. However the Tribunal notes in his visa application the applicant indicated that it was his father who thought he should go overseas. The Tribunal is of the view this inconsistency casts doubt on the applicant’s claims that either of his parents thought he should go overseas because of the family’s difficulties with [Mr A]. The Tribunal is not persuaded that the applicant would leave his mother so soon after his father’s death if it was the case that the family genuinely believed his father’s accident had been orchestrated by [Mr A] and his followers. The Tribunal is of the view the applicant’s failure to seek protection in [Country 1] in the period December 2009 to March 2010 casts serious doubt on his claims to believe his father’s accident had been orchestrated by [Mr A] and that he was fearful of returning to India.
The Tribunal notes that the applicant returned to [Country 1] [in] December 2012 and stayed there until [April] 2013 and he did not seek protection. His explanation for not seeking protection on that occasion was that he thought that the situation would normalise. He has also claimed his wife was under pressure. The Tribunal considers this to be highly unpersuasive. The applicant has claimed the situation with [Mr A] arose as early as 2007 because his father left the INLD as he became aware of [Mr A’s] corruption and he became [Mr A’s] political enemy because of his popularity with the farmers in the area. The applicant has claimed at various times that he and the family were threatened and harmed by [Mr A] and his followers. He has claimed that in November 2009 his father was killed in an accident possibly orchestrated by [Mr A] and his gang. He has claimed that [Mr A] and his followers intimidated the applicant to try and get him to withdraw charges against [Mr A]. He has not provided any supporting evidence regarding charges against [Mr A]. He has claimed that he continued to seek justice for his father’s death and that he was beaten in May 2012, more than 2½ years after he alleges his father died in suspicious circumstances. The Tribunal is of the view that, if this was the case, and the applicant genuinely feared serious harm in India, he would have sought protection in [Country 1] when he visited in the period December 2012 to April 2013. Also there is no evidence to support his claim that he returned to India to seek justice for his father’s death. The Tribunal is of the view this is merely a spurious claim made to justify his voluntary return to India. The Tribunal is of the view the applicant did not seek protection in [Country 1] in this period because he was not fearful of returning to India. It is of the view this casts doubt on all of his claims regarding the breakdown of the relationship between his father and [Mr A], and his allegations that his father was killed in an accident which he suspected was orchestrated by [Mr A] and his followers. The Tribunal is of the view this also casts doubt on the applicant’s claim to have been threatened and beaten by [Mr A’s] followers at various times. It does not accept he returned to India in April 2013 for the reasons he has given. It is of the view his return to India demonstrates he was not fearful.
The applicant had 2 opportunities while in [Country 1] on 2 different occasions to seek protection. The Tribunal is of the view that if the applicant or a member of his family had been harmed by [Mr A] or his followers and that as a consequence he genuinely feared harm in India he would have sought protection while in [Country 1]. The fact that he did not seek protection and voluntarily returned to India on 2 occasions demonstrates to the Tribunal that he was not fearful. Accordingly the Tribunal does not accept that the applicant has approached the police and that they have refused to investigate [Mr A] and his followers because they had been bribed. The Tribunal finds his evidence about his approaches to police is vague, inconsistent and lacking in detail. The Tribunal does not accept that the applicant has sought state protection in India which was not provided.
The applicant has claimed that he went into hiding in India but they kept threatening him. He claimed he went to Himachal for 15 to 20 days, but they found him. The Tribunal is unpersuaded by this evidence. It does not accept he went into hiding in India because it does not accept he was being threatened and harmed by [Mr A] and his followers/gang.
Considered overall the Tribunal has serious doubts about the reliability of the applicant’s evidence. For the reasons discussed above it is not satisfied he is a credible witness. Accordingly it does not accept he was threatened or attacked in May 2012, or in October 2012, or in July 2014 or [in] November 2014 or at any other time. Nor is it satisfied his father had been a member of the INLD and that when he left [Mr A] then considered his father a political enemy. It has formed the view the applicant has fabricated these claims.
Overall the Tribunal is not satisfied that the applicant was harmed or threatened by [Mr A] or his followers. It is not satisfied that his father was killed in an accident possibly orchestrated by [Mr A] and his gang. It has formed the view that the applicant has manufactured these claims in an effort to achieve his desired migration outcome. It is not satisfied the applicant is of any interest to [Mr A] or any other person in India. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act relating to all areas of India.
Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the Tribunal is not satisfied the applicant is a reliable witness and it does not accept his claims about threats and harm. While the applicant has claimed that he has been threatened, attacked and beaten in the past, and that he has ongoing pain associated with the beating, the Tribunal is not satisfied the applicant has provided reliable evidence to support those claims. The Tribunal has not accepted the applicant’s claims that he will be harmed in the future by [Mr A] or his followers. The applicant has indicated that he has depression, nervousness and mental confusion. He has not provided any medical evidence in support of those claims. The Tribunal notes he and his wife have been able to secure paid employment in Australia. It also notes from his own evidence that he has previously worked [in Occupation 1] in India and that he still has [the business] in [Village 1]. He has also run a business in India. On the basis of this evidence the Tribunal is satisfied the applicant will be able to secure employment in India such that he and the family will be able to subsist.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

At the hearing the applicant informed the Tribunal that the second and third named applicant seek to rely on his claims. This is consistent with information provided in their protection visa applications. Accordingly the Tribunal is not satisfied there is evidence before it to indicate that the second or third named applicant are persons in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.
For the reasons given above the Tribunal is not satisfied that any 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.
Denise Connolly
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.
…

[2019] AATA 3362

22 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction