1612138 (Refugee)

1612138 (Refugee) [2018] AATA 435 (9 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612138
COUNTRY OF REFERENCE:                  India
MEMBER:Christopher Smolicz
DATE:9 February 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 09 February 2018 at 4:26pm

CATCHWORDS
Refugee – Protection Visa – India – Religion – Follower of Dera Sacha Sauda – Fear of harm based on being accused of sacrilege – Witness credibility – Inconsistent and contradictory evidence – Limited knowledge of Dera Sacha Sauda – Distress experienced by minor applicant in being removed from Australia – Support network available in home country – Distress minimal
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323

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 and Border Protection [in] July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of India applied for the visas [in] November 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue raised by the applicant in this matter is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·     He is a supporter/follower of the Dera Sacha Sauda (DSS) religion
·     His father is a supporter/follower of the DSS religion who has been accused of destroying the Sikh holy book (Guru Granth Sahib)
·     He has been accused of destroying the Guru Granth Sahib and is wanted by the police
·     He has been named in the media and accused of sending money to the DSS in India.
It was also raised for the first time at the hearing that the applicant fears his daughter’s (the third named applicant) distress if she were to return to India and that she would be raped if she returned to India.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The delegate’s decision, which the applicant provided to the Tribunal, details the following evidence about the applicant’s migration history.
The applicants are citizens of India. [In] May 2009 the first named applicant (the applicant) arrived in Australia with his wife. The applicant travelled to Australia as a dependent holder of a [Student] visa. His wife was the substantive visa holder. The third named applicant (the daughter) was born in Australia in [birth year].
[In] February 2011 the applicant departed Australia and travelled to India.
He returned to Australia [in] May 2011.
[Later in] May 2011 the applicant lodged an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa. [In] May 2012 the skilled graduate visa was refused.
On 24 May 2012 the applicant applied to the Migration Review Tribunal (MRT) seeking review of the Department’s decision.
[In] September 2012 the applicant departed Australia and travelled to India. He returned to Australia [in] October 2012.
On 17 September 2013 the Tribunal affirmed the Department’s decision not to grant the applicant the Subclass 485 (Skilled Graduate) visa.
[In] October 2013 the applicant lodged an application seeking judicial review with the Federal Circuit Court of Australia (FCCA). [In] May 2014 the FCCA dismissed the application.
[In] May 2014 the applicant lodged an application seeking review with the Federal Court of Australia (FCA). [In] August 2014 [the court] dismissed the application.
[In] September 2014 the applicant lodged an application for Ministerial Intervention under s.351 of the Act. [In] November 2015 the applicant was advised the application was not considered by the Minister.
[In] November 2015 the applicants lodged the protection visa applications subject of the current application.
Summary of substantive claims
The applicant provided the following evidence in his protection visa application in support of his claims.
The applicant claims that he left India with his ‘wife and daughter’ because his wife was a student in Australia.
In response to the question seeking details of what the applicant thinks may happen to him if he returns to India, the applicant declared that he fears being attacked and killed upon his return to India because he and his family are followers of the DSS.
He claims his family in India was attacked and went into hiding.
He states that recently ‘some bad people’ tore the pages of ‘Shri Guru Granth Sahib’ in Punjab which provoked protests and attacks on DSS members. He claims two people were killed by the police.
The applicant claims the authorities in India are not protecting his family and other people who are facing such attacks.
The applicant declared that he has not experienced any harm in India in the past.
The applicant declared that if he and his family try to move to a different part of India to seek safety, the people he fears have contacts and will be able to find him and harm him and his family.
The second named applicant and the third named applicant declared that they were not making their own claims for protection.
Tribunal hearing
The Tribunal questioned the applicant about his religious belief, why he left India and travelled to Australia and why he fears returning to India.
The Tribunal did not find the applicant to be a credible witness. The Tribunal finds the applicant’s evidence at the hearing vague and lacking in detail. The Tribunal finds that the applicant had to be prompted throughout the hearing to recall his claims. The Tribunal also finds that the applicant provided evidence at the hearing which was inconsistent with his written claims. The Tribunal’s concerns with the applicant’s evidence are discussed below.
The Tribunal asked the applicant why he applied for the protection visa in November 2015. The applicant said that his father left the family home in 2014 because people were bothering his family. The applicant said there was a preacher in Sirsa who was accused of burning Guru Granth Sahib and people were killed. The applicant said that the people blamed his family because they thought that they were followers of the preacher in Sirsa. The applicant claims the people blamed his father for burning the holy books.
The Tribunal noted that the applicant travelled to Australia in 2009 and was not in India in 2014. The Tribunal asked the applicant how the dispute with his father was relevant to his fear of harm in India. The applicant said the people came to his home.
The applicant said that in 2012 he returned to India because his wife had some health issues following the birth of their daughter. He claims a ‘rival group’ suspected him of donating money to the group.
The Tribunal asked the applicant on a number of occasions to clarify what rival group he was referring to and what group was he accused of belonging to. The applicant was unable to answer the Tribunal’s questions. The applicant subsequently said that they did not belong to any group. He claimed his brother was unwell and his father took him to Sirsa. People thought that they were followers of the group because they went to Sirsa. He claimed there were people who did not like them and made a complaint to the police.
The Tribunal again asked the applicant on a number of occasions if he could name the group that was associated with Sirsa. The applicant was unable to answer the Tribunal’s question. After further questioning the applicant referred the Tribunal to Sirsa Wale Baba. The applicant was unable to explain to the Tribunal the name of the group that was associated with Sirsa Wale Baba. After further questioning the applicant referred to the baba as Ram Rahim Singh. The Tribunal asked the applicant if he could name the dera associated with Ram Rahim Singh. The applicant could not answer the question.
The Tribunal told the applicant that it was concerned that he was unable to provide a coherent account of why he feared persecution in India and the name of the group he claims his father was associated with in India.
The Tribunal told the applicant that it was aware that Ram Rahim Singh was associated with the DSS. After being prompted by the Tribunal, the applicant subsequently said that the group he was accused of following was the DSS.
The Tribunal found the applicant’s evidence lacking credibility. The Tribunal would have expected the applicant to be able to recall the name of dera associated with his father which is mentioned in his written claims without having to be promoted by the Tribunal at the hearing.
The applicant repeated his earlier evidence and said that in 2014 his brother had health [issues] and his father took him to Sirsa to see Sirsa Wale Baba to cure his health problems. His father was a follower of the Sikh religion but when the Sirsa Wale Baba started to help his brother the father became a follower.
The Tribunal asked the applicant what was his association with the DSS. The applicant gave a number of contradictory answers. The applicant first said that he was a Sikh and then became a follower of the DSS. He subsequently he said that he was not a follower of the DSS but his father started to follow the DSS in 2013. The Tribunal referred the applicant to his protection visa application and noted that at question 33 he declared that he was a follower of the Sikh religion. The applicant acknowledged that he is a follower of the Sikh religion.
The Tribunal noted that in response to the question seeking details of his ethnic group (question 32) he stated ‘Dera Sacha Sauda’. The applicant said that he was associated with the DSS after his father started to follow the DSS in 2013. The Tribunal asked the applicant if he went to any dera in Australia. The applicant said he had never been to a dera in Australia. He confirmed that he had never been to a dera in India and has never been to Sirsa where the DSS are based. The Tribunal has had regard to the applicant’s evidence and finds the applicants are not followers of the DSS in India. The Tribunal has had regard to the applicant’s evidence and finds it surprising that he claims in his application that people in India want to kill him because of his and his father’s association with the DSS.
The applicant maintained that his life was in danger and that people blamed him for burning the Sikh holy book and people accused him of sending money from Australia to the DSS. He claimed the holy book was burnt in 2014. The Tribunal asked the applicant if he had ever sent money to the DSS. The applicant said the he did not and he was falsely accused and his life was in danger. He claims his name was mentioned in the media. The Tribunal asked the applicant if he had any evidence to support his claims. The applicant said that he did not.
The Tribunal referred the applicant to media reports which claim that destruction of the Sikh holy book (Guru Granth Sahib) occurred in October 2015 and not in 2014 as he claims. The applicant claimed there was an earlier incident. The Tribunal finds that the applicant claim is no supported by the media reports.[1] Having considered the country information the Tribunal does not find it possible that the applicant or his father would have been accused of burning the Sikh holy book in 2014.
[1] ‘2 dead in Kotkapura police firing’, The Tribune, 15 October 2015, (see copy on Department file at folio 41)
DFAT also advise that in October 2015 some damaged pages of the Guru Granth Sahib were found near a Sikh temple (or Gurdwara). It is unclear who was responsible for damaging the text. Protests against the ‘desecration’ of the text were subsequently held in a number of villages and cities across Faridkot District. Two protesters were reportedly killed in Behbal Kalan village when police opened fire to disperse the protesters. In addition to the two deaths, a further 82 people (including 12 police) were injured and several vehicles torched across Faridkot during the protests, which lasted several days. The police response, which included baton charges as well as the use of firearms, was seen by some in the Sikh community to be disproportionate. An official commission of inquiry into the incident has not yet reported its findings.’[2]
[2] DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [3.5]
The Tribunal noted the applicant has not claimed to have been harmed in the past in India and asked the applicant why he fears returning to India in the foreseeable future. The applicant said that police are still coming to his home looking for his father because he is accused of burning the holy book. The Tribunal again noted that he was in Australia since 2009 and asked the applicant to explain how he is implicated. The applicant claimed his name was mentioned and he was accused of sending money. He claims to fear being killed by the police. He claims he will be arrested at the airport and tortured. He claims that he knows of a person called ‘Jaggi Johal’ who came from England to India and was arrested and tortured. The Tribunal asked the applicant to explain how the arrest of Jaggi Johal was relevant to his application. The applicant said that he did not know the person and does not know anything about Jaggi Johal.
The Tribunal has had regard to media reports which confirm that a person called Jagtar Singh (Jaggi) Johal is a Scottish Sikh activist who faces charges in India for allegedly being involved in a conspiracy to kill minority leaders in Punjab (RSS leader Durga Prasad).[3] The Tribunal has had regard to the reports and finds that the arrest of Jaggi in 2017 appears to be related to a criminal matter which has no relevance to the applicant, his family or to the applicant’s claims that he fears persecution in India.
[3] ‘Jaggi Johal remanded to three days custody by NIA court’, SBS news, 20 December 2017, ‘Jagtar Singh ‘Jaggi’ Johal: Police remand extended again’, SBS news, 29 November 2017, >
The Tribunal also noted at the hearing that although the DSS were initially implicated and suspected of the destruction by the Sikh community, the reports confirm that the police have ruled out the role of the DSS followers in the incidents.[4] The Tribunal noted that some media reports suggested that an Australia man (Rupinder Singh) was associated with the incident.[5] The Tribunal finds that there is no evidence that the applicant was associated with this person or was accused of sending money to the DSS in India.
[4] ‘“Granthi’ among 2 held for sacrilege incidents in Amritsar, Ludhian’, The Tribune, 19 October 2015. ‘Holy Guru sacrilege: Punjab police arrest two brothers, suspect Australian connection’. Firstpost. 21 October 2015, >
The Tribunal notes that the applicant’s evidence about his association with the DSS was vague, inconsistent and lacking in credibility. The Tribunal has had regard to country information and notes that a dera is an ashram or temple that conducts social and educational activities.[6] One of the most popular and controversial deras in India is Dera Sacha Sauda (DSS), sometimes referred to as Dera Sauda Sirsa, due to the location of its headquarters near the town of Sirsa, Haryana.[7] The DSS website states that it has 44 ashrams across India and claims to have over 40 million followers worldwide.[8]
[6] See ‘Dangerous tensions in Punjab’ The Economist, 5 July 2007, cfm?story_id=9444533
[7] Sharma, N S, ‘Controversy over fake affidavit submitted by police about case against Dera Sach Sauda head’, Punjab Newsline, 6 February 2012,
[8] ‘Dera Sacha Sauda Ashrams Across India’, Dera Sacha Sauda, ‘About Us’, Dera Sacha Sauda Australia, type="1">
The Tribunal also found the applicant’s evidence about his father’s association with the DSS vague and lacking in credibility. The Tribunal does not accept that the applicant or his father were members or followers of the DSS or had any association with the DSS in India as claimed. As detailed above, the applicant was not able to name the dera until he was prompted by the Tribunal at the hearing. The Tribunal finds the applicant’s claims that he has been accused of sending money to the DSS, that his name has been mentioned in the media and that he has been accused of burning the Sikh holy book, and that the police have attended his home in India to be vague and lacking in credibility. The Tribunal finds the applicant has manufactured these claims.
Having considered the applicant’s evidence the Tribunal also does not accept the claim that the applicant’s father would be accused of destroying the Guru Granth Sahib because he travelled to Sirsa to obtain treatment for his son from Guru Gurmeet Ram Rahim Singh. The Tribunal does not accept the applicant’s claims that he is a person of interest to people who are opposed to the DSS in India. The Tribunal finds that the religious unrest caused by the destruction of the Guru Granth Sahib that occurred in October 2015 has nothing to do with the applicant’s or the applicant’s father in India.
Having rejected the applicant’s claims the Tribunal does not accept that the second named and third named applicants are followers or in any way associated with the DSS because of the applicant or his father. The Tribunal finds the applicants are followers of the Sikh religion and will be returning to the state of Punjab which has a majority Sikh population.
DFAT assesses that ‘violent events involving religion are rare and are not representative of a generally peaceful environment in Punjab. DFAT assesses that people in Punjab face a low risk of violence on the basis of their religious beliefs. DFAT further assesses that, while people in Punjab often face minor levels of societal discrimination on the basis of their religion, this discrimination rarely escalates to significant levels and rarely involves the targeting of people of particular religious groups. DFAT assesses that societal discrimination on the basis of religion typically takes the form of positive discrimination in favour of one’s own religious group. Furthermore, DFAT assesses that religion is often not the sole motivation for societal discrimination, which typically involves a complex mix of religious, linguistic, caste and class issues.’[9]
[9] DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [3.5];DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [3.6]
Country information confirms that India is the home to 19 million Sikhs which constitutes about 1.9 per cent of the national population. In 2012, seventy-five per cent of India’s Sikh population resided in Punjab (the applicant’s home area), where they constituted 59.2 per cent of the population.[10] While acknowledging historical clashes between Hindus and Sikhs, the Tribunal noted that DFAT currently assesses that the Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups.[11] Looking to the reasonably foreseeable future the Tribunal does not accept there is a real chance the applicants would face persecution in India because of their Sikh religion.
[10] US Department of State, International Religious Freedom Report 2011 – India, 30 July 2012, Section I; Immigration and Refugee Board of Canada, India: Treatment of Sikhs in Punjab (2007-February 2012), IND103968.E, 2 May 2012,
[11] DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [2.8], [3.4] and [3.9–3.10]
Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance the applicants would face serious harm if they return to India because they are DSS supporters/followers or because the applicant is perceived to be a DSS supporter who was accused of destroying the Guru Granth Sahib or sending money to the DSS in India.
The Tribunal finds that the applicants’ fear of persecution because of their religion is not well founded.
New claim
The Tribunal questioned the second named applicant at the hearing. The second named applicant said her daughter has grown up in Australia and that she fears for the safety of her daughter in India. The Tribunal was provided with a reference letter from the principal of [an Australian school]. The letter states that the third named applicant has lived in [the suburb] her entire life and attended school since [date]. She has friends and is a successful student and considers [the suburb] her home. She is shy and returning to India could impact on her opportunities significantly. She has been distressed at the thought of returning to India and her parents are concerned about the impact leaving Australia would have on their daughter.
The applicant said he wants his daughter to remain in Australia and finish her schooling and he fears his daughter would be raped in India. The Tribunal finds that no evidence was provided to support the claim made at the hearing that the applicant’s [daughter] is in any risk of being sexually assaulted in India. The Tribunal finds the claim relates to generalised violence in India and is speculative. Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the third named applicant would be sexually assaulted if she were to return to India.
The Tribunal notes that the applicant and his wife arrived in Australia in 2009 as holders of temporary student visas. Their daughter was born in [birth year] and they have returned back to India as a family in February 2011 and September 2012. The Tribunal accepts that if the third named applicant were to return to India with her family it may initially cause some distress to the child. The Tribunal notes however that the third named applicant would be returning to India with her parents to the family home in India. Having heard the evidence of the first and second applicants the Tribunal finds that they are caring and supportive parents. The Tribunal finds that the third named applicant would be returning to a supportive and caring family environment. Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the third named applicant would face serious harm if she were to return to India because she has grown up in Australia and does not want to return to India.
Complementary protection
The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk they will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
‘The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[12]
[12] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).
As detailed above the Tribunal does not find the applicant to be a credible witness. The Tribunal does not accept the applicant is a follower or in any way associated with the DSS in India. The Tribunal also does not accept the applicant’s father is a follower or in any way associated with the DSS in India. The Tribunal does not accept the applicant or his father have been accused of damaging the Sikh holy book. The Tribunal does not accept the applicant has been accused of sending money to the DSS in India or that he has been the subject of media reports. The Tribunal finds that there is no association between the arrest of UK citizen Jagtar Singh ‘Jaggi’ Johal and the applicant. The Tribunal does not accept the applicant will be arrested, detained or tortured if he returns to India. The Tribunal finds the applicant is of no interest to the police in India. The Tribunal finds that the applicant manufactured all these claims and there are no substantial grounds for believing that there is a real risk that the applicant, his wife and daughter will suffer serious harm if they return to India.
The Tribunal has also considered the new claim raised on behalf of the third named applicant. As detailed above the Tribunal accepts the third named applicant was born in Australia and feels distressed at the prospect of having to leave Australia and go to India. The third named would be returning to India with the first and second applicants who are caring and supportive parents. As detailed above the Tribunal finds the applicant’s fear that his daughter would be raped is speculative. The Tribunal is also not satisfied the distress caused to the third named applicant if she travels to India and the lack of future opportunities does not amount to significant harm.
The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk they will suffer significant harm.
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.
Christopher Smolicz
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.
…

[2018] AATA 435

9 February 2018

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