1612482 (Refugee)

1612482 (Refugee) [2019] AATA 6793 (10 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612482
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:10 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 10 December 2019 at 9:42am

CATCHWORDS
REFUGEE – protection visa – India – political opinion – Congress Party activist – election work for Congress Party – harassment from Bharatiya Janata Party (BJP) – fear of communal violence – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426
Migration Regulations 1994, Schedule 2; r 1.12
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 5 August 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 24 March 2016. The delegate refused to grant the visas.
The applicants were invited to schedule an interview with the delegate of the Minister to discuss the claims. They did not take up that opportunity.
The Tribunal sent the applicants an invitation to appear before the Tribunal at a hearing on 3 December 2019 to give evidence and present arguments. They provided no response to that invitation and did not appear before the Tribunal at the time and place scheduled, nor make any contact with the Tribunal to inform it of any change to their contact details or any reason why they were unable to attend.
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) of the Act. 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) of the Act, 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 of the Act, 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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the second named applicant (‘applicant wife’) is the spouse of the applicant and the third named applicant (‘applicant son’) is a dependent child of the applicant, and therefore both are members of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – India, 17 October 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Tribunal is able to be satisfied as to factual claims made by the applicants and whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants arrived in Australia [in] December 2015, as the holders of [temporary] visas. The applicants applied for a protection visa on 24 March 2016. Prior to coming to Australia, the first and second named applicants visited [Country 1] many times, and also visited [other specified countries]. The applicants do not provide any dates for these trips. The third named applicant accompanied the first and second named applicants to [Country 1], [and other countries].
The following information is apparent from the applicants’ application for protection forms. The first named applicant (‘the applicant’) was born on [date] in Kolar, Karnataka State, India. The applicant lists his ethnicity as Indian, and is a Hindu who speaks Telugu and Kanada. The applicant married [in] February 2013 in India. The applicant’s mother is deceased, and his father [and specified family members] all live in India. The applicant lived in Kolar, Karnataka from birth until January 1995, and then lived in Bengaluru, Karnataka until December 2015. The applicant worked in his father’s [business] from January 2003 until December 2010, and then owned a [shop] from January 2011 until November 2015. The applicant lists no education.
The applicant wife was born on [date] in [her home town in] Karnataka State, India. The applicant wife lists her ethnicity as Indian, and is a Hindu who speaks Telugu, and can speak, read, and write limited English. The applicant wife’s [specified family members] remain in India. The applicant wife lived in Bengaluru, Karnataka from birth until March 2013, and then lived with the applicant in Bengaluru, Karnataka from December 2015. The applicant wife completed [a level of] school at [a specified school] in [year]. The applicant wife has never worked.
The applicant son was born on [date] in Bengaluru, Karnataka State, India. At the time of the application, the applicant son could not speak any language, and was listed as a Hindu of Indian ethnicity.
The applicant wife and the applicant son are not making their own claims for protection. They are therefore seeking protection on the basis of being members of the same family unit as the applicant.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I am an Indian by birth. I am married and have one child.
I have been to many countries as a visitor. I first travelled to [a named country], outside of India, in 2011.
I never studied. My mother is deceased. My father and siblings are in India.
I only have a right of residency in India and only have my citizenship with India. I do not have these rights with any other countries.
I have been a Congress supporter for seven years. I helped the Congress parties during their election time. I helped them during their election campaign. I go door to door to ask for votes for congress.
After the BJP won the election in the national level I have started to receive harassment from the [inked out] supporters.
I could not seek assistance from Indian Authorities as the BJP is in power. I could not move outside of my state as I never lived or worked outside of my state. The BJP is very powerful all over the Indian States since they won their election.
In the later part of February 2016 my father and siblings told me that I should postpone my return to India as the BJP supporters' activities have been increased and that I should postpone my return to India.
Violence and discrimination against non-Hindus, Congress party supporters and religious minorities have been increased after the BJP came in power. The Police is ineffective to prevent the said violence and discrimination.
I applied for a [temporary] visa extension which was refused as I could not complete the health check and could not provide the documents as the DIBP requested. This was because I became aware of that request by email after the DIBP's deadline.
In the general election I worked hard with the Congress Party in my State and this was not tolerated by the BJP Political supporters as the Congress was ruling India for many years.
Although I explained the BJP supporters that I have freedom to support any political party as I wish as a believer in democracy they warned me that I should not support the Congress political party anymore and I would face adverse consequences in the future.
I supported the Congress Political Party in my State because, mainly, it respects all the religions equally and respects the freedom of all the religious right of practice.
I kindly seek that you grant my wife, my child and myself protection of Australia until my situation in India has changed.
I will provide additional information is respect of my refugee claims when the DIBP calls me for an interview.
Independent information
DFAT Country Information Report – India, 17 October 2018 provides as follows:
POLITICAL SYSTEM
2.26 The Republic of India is a federal constitutional democracy, made up of 29 states and seven union territories, controlled by the central government. The Constitution divides powers between the central government (also known as ‘the Centre’ or ‘union government’), and the states, with some areas of shared responsibility. The President of India has formal executive power over the central government but acts on the advice of ministers.
2.27 The national parliament is bicameral, comprising the Lok Sabha (people’s or lower house) and Rajya Sabha (states’ or upper house). The Lok Sabha consists of 543 elected members and two presidential appointees to represent the Anglo-Indian community. Lok Sabha members are elected by universal adult suffrage every five years using the ‘first past the post’ voting system. The current Rajya Sabha consists of 233 elected members, and twelve presidential nominees. One-third of Rajya Sabha members are elected every two years by the legislative assemblies of the Indian states.
2.28 According to the Election Commission of India, India has more than 2,000 registered political parties representing diverse political, ethnic and religious interests. Most of these parties have a regional focus and do not stand candidates nationwide. This diversity of representation means that broad coalitions are often required to form governments at the federal level.
2.29 For much of the post-independence era, Indian politics has been dominated by the Indian National Congress Party (Congress). However, the Bharatiya Janata Party (BJP) won 282 seats out of 543 elected seats in the 2014 general election, the first time that a single party obtained a parliamentary majority since 1984. The BJP formed government along with its National Democratic Alliance (NDA) partners, who won a further 54 seats. Prime Minister Narendra Modi and his cabinet were sworn in on 26 May 2014. The next general election is due by May 2019.
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.20 Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
3.21 India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Opposition Parties and Critics of the Government
3.22 The Constitution protects the right to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity.
3.23 There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
3.24 During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
3.25 DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.
The Country of Origin Information Services Section (COISS) of the Department of Home Affairs, India Situational Update – General Election 2019, 2 July 2019, states:[1]
A general election for a new Lok Sabha, or lower house of parliament, was held in seven stages in India between 11 April and 19 May 2019. The votes were counted on 23 May 2019.[2] The previous election, held in May 2014, was won convincingly by the National Democratic Alliance coalition led by the Bharatiya Janata Party (BJP), with Narendra Modi becoming Prime Minister.[3]
The government was returned to power in the election. In the 2019 election, the government increased its majority, with the BJP winning 303 seats on its own, and together with its allies in the National Democratic Alliance, has 353 seats of the 542 seats that were up for election in the Lok Sabha.[4] The main opposition party, the Indian National Congress (Congress), won only 52 seats.[5]
[1] Department of Home Affairs, India Situational update – General Election 2019, 2 July 2019, p. 1, (accessed 3 September 2019).
[2] ‘India Lok Sabha election: 11 things you need to know’, Biswas, S, BBC News, 10 March 2019, 20190312114159
[3] ‘Country Report on Human Rights Practices 2015 – India’, US Department of State, 13 April 2016, p.1, OGD95BE926246; ‘Freedom in the World 2019 – India’, Freedom House, 4 February 2019, A. Electoral Process, 20190418145015
[4] ‘BJP activist shot dead in India’s West Bengal’, Xinhua, 27 May 2019, 20190528110346; ‘India: Muslim men attacked in two separate incidents’, Niazi, S, Anadolu News Agency, 27 May 2019, 20190528114026; ‘EC submits list of newly-elected MPs to President for constitution of 17th Lok Sabha’, Press Trust of India, 25 May 2019, 20190528130404
[5] ‘EC submits list of newly-elected MPs to President for constitution of 17th Lok Sabha’, Press Trust of India, 25 May 2019, 20190528130404; ‘Indian Church congratulates Modi, pledges to work together’, AsiaNews.it, 27 May 2019, 20190528124225
A 2019 article on Outlook stated the following in regards to the National Congress Party’s (NCP) position:
However, the grand old party, which was reduced to just 44 parliamentarians in 2014, didn't improve much on its tally in 2019, getting only 52 seats.
As per the rules, any Opposition party must have at least 10% of the total Lok Sabha seats -- 543 -- to have an LoP. With just 52 MPs, the Congress has once again fallen short of the required number to stake claim to the post.[6]
[6] Puneet Nicholas Yadav, ‘Congress fails to get leader of opposition post in Lok Sabha, again,’ Outlook, 24 May 2019, (accessed 3 September 2019).
A 2019 article in India Today also stated:
The Congress has won 52 Lok Sabha seats in the just-concluded Lok Sabha election. The party has improved its tally in the Lok Sabha from 44 in 2014 and remains the main Opposition party in the house. However, like the 16^th Lok Sabha, the Congress has not qualified to have a Leader of Opposition in the 17^th Lok Sabha.
Under the existing rules, an Opposition party can claim to have a Leader of Opposition in any of the houses provided the party has won 10 per cent of the seats. This number is 55 in the Lok Sabha, which is a 543-member house.[7]
[7] Prabhash K Dutta, ‘Narendra Modi government will not have Leader of Opposition in Lok Sabha again,’ India Today, 24 May 2019, (accessed 3 September 2019).
Assessment
By letter sent by email dated 21 October 2019 the Tribunal invited the applicants to appear before it on 3 December 2019 to give evidence and present arguments. That letter was sent to the applicants’ last identified address for correspondence and noted that if the applicants did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear. The applicants did not respond to that invitation or make any contact with the Tribunal in respect of the scheduled appearance or the review application more generally.

Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicants are citizens of India and accordingly their claims will be assessed against India.
The Tribunal would have wished to explore with the applicant in the hearing details of his membership and activities with the NCP and any difficulties, harassment or mistreatment he had suffered as a result. The Tribunal would have wished to explore with the applicant what had occurred after he had left India for Australia that caused him to decide that he needed protection in Australia as a result of his political involvement. The Tribunal would have wished to explore these issues in the context of the DFAT information extracted in this decision which makes no mention of members of opposition political parties in India suffering widespread significant mistreatment or harm as a result of such membership. The Tribunal would further have noted that the applicant has provided no independent information to the contrary.
The Tribunal is not satisfied as to key substantive claims by the applicant. The Tribunal is not satisfied that the applicant has engaged in political activities as a member of the NCP or otherwise which has caused him to be harassed or mistreated by the BJP or anyone else as a result of his political involvement or singled out for harassment and mistreatment. The Tribunal is not satisfied that the applicant’s membership or involvement with the NCP would lead to a real chance of him facing serious or significant harm including in light of there being no independent evidence before the Tribunal that would substantiate systemic or widespread harm suffered in India by members of key opposition groups.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk of the applicant suffering significant harm for any of the reasons claimed.
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.
David McCulloch
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 6793

10 December 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction