1612641 (Refugee)

1612641 (Refugee) [2017] AATA 1114 (20 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612641
COUNTRY OF REFERENCE:                  India
MEMBER:Christopher Smolicz
DATE:20 June 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 June 2017 at 3:25pm
CATCHWORDS
Refugee – Protection visa – India – Religion – Hindu – Threats from ex-wife’s family – Dera Sauda Sirsa members – Credibility issues – Delay in protection application
LEGISLATION
Migration Act 1958 ss 5H, 5J, 5K-LA, 36(2)(a), (aa), (b), or (c), 65, 499
Migration Regulations 1994, 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 [in] July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India applied for the visa [in] May 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee or complementary protection criteria because:
·     his ex-wife and her family are followers of the Dera Sauda Sirsa (DSS) religious sect in India
·     He has been threatened by DSS followers and his ex-wife’s family in India
·     he has been threatened by members of the Hindu community in India.
Background
The applicant is a [age] year old citizen of India. He first arrived in Australia in April 2008 as the holder of a [temporary] visa. [In] March 2011 he was granted a further [temporary] visa which was valid to [date] November 2011.
In October 2011 he applied for [another] visa. The visa was refused because the applicant did not satisfy [certain] criteria. He applied to the Migration Review Tribunal (MRT) to the review the decision. On 1 July 2013 the MRT affirmed the department’s decision.
The applicant applied to the Federal Circuit Court to review the MRT decision. [In] February 2014 the Federal Circuit Court affirmed the MRT decision. The applicant subsequently applied to the Full Federal Court. [In] August 2014 the FFC refused his application.
The applicant subsequently applied for Ministerial Intervention. [In] September 2014 his application was refused.
[In] April 2016 he was granted a Bridging visa E on departure grounds. [In] May 2016 the applicant applied for the protection visa which is subject of the current application.
Since arriving in Australia he returned to India in October 2010 and May 2012.
Summary of substantive claims
The applicant claims that he left India to come to Australia [with] his wife ([Ms A]). They have [children] together. He is of the Hindu faith. His wife is a follower of the DSS religious sect. He claims that after a long relationship they have now separated. His wife’s family and DSS followers believe that he brought a bad name to their family and Dera followers. They believe that he tried to convert his wife. They believe that because his wife did not convert he left her. The applicant claims that Dera followers will go to any extent to harm him. He claims the authorities cannot protect him as money buys favours from the authorities.
Tribunal hearing
The Tribunal questioned the applicant about why he feared returning to India. The applicant said that he married his wife in 2000 and they have [children]. The children have remained in India and are being cared for by his parents.
The applicant said that at the time he married his wife he did not know that she was a follower of Guru Ram Rahim (DSS). He knew little about their religious beliefs and has not been to their place of worship. He has no interest in their religion.
The Tribunal told the applicant that it was surprised that he could have married his wife and had [children] and not known that she was a follower of a different religion.
The applicant said that his “community” did not approve of his wife’s religion. His community wanted him to leave his wife. He did not want to leave his wife and therefore his life was in danger if he stayed in India. He spoke to an agent and decided to come [to] Australia with his wife in 2008.
The Tribunal noted that according to his evidence he married in India in 2000 and had [children] and continued to live in India until 2008 despite claiming that his life was under threat. The applicant said that no one knew at the time that his wife was a follower of the DSS.
The Tribunal asked the applicant to explain what changed in 2008. The applicant claims that his wife told him in private that she was a follower of the DSS and asked him to follow the DSS. The applicant said he had no interest in converting to the DSS but he supported his wife’s religion. He did not try to convert his wife to the Hindu religion. He thought it would be a big problem and decided to leave India.
The Tribunal asked the applicant why he did not consider moving to another part of India if he had problems in his home area. The applicant claims he could have been found anywhere.
The Tribunal asked who would cause him harm in India. The applicant said he feared his Hindu community members who did not approve of his marriage to a follower of the DSS. He fears they will kill him. The applicant was unable to explain which community members he feared.
The Tribunal noted that murder was a serious crime in India and asked the applicant why he claims the community members wanted to kill him. The applicant did not answer the Tribunal’s question. After further questioning the applicant said he knew it happened in his community.
The Tribunal told the applicant that it found his evidence vague and he has not provided any evidence of any threats that were made against him. The Tribunal invited the applicant to be more specific in relation to the threats he received in India. The applicant said “some people” called him. Again the Tribunal asked the applicant to expand on his evidence. The applicant said that some people called him on his phone and told him he needs to leave his wife. The Tribunal asked the applicant if he knew the caller’s identity. The applicant said he did not know. He subsequently said the threats were made by Hindu people because only Hindu people would do this.
The Tribunal asked the applicant if he reported the incident to the police. The applicant said he did not report the threats to the police because the caller told him that they would kill him if he did.
The Tribunal told the applicant it was concerned about his oral evidence because it was different from his written claims. Specifically, in his written claims he states that he feared DSS members and his wife’s family who were DSS because they thought he was trying to convert her to his religion. At the hearing he claimed he feared the Hindu community because he was married to a DSS follower.
The applicant said that at the beginning he feared the Hindu community but afterwards he feared his wife’s family because they wanted him to convert to the DSS religion. The Tribunal told the applicant it was concerned that he had not previously mentioned this evidence and was making new claims.
The Tribunal asked the applicant on a number of occasions when he separated from his wife. The applicant said it was in May 2016 and his wife no longer wants to live with him.
The Tribunal noted that he has now been in Australia since 2008 and has separated from his wife. The Tribunal asked the applicant to explain why the Hindu community still want to kill him if he returns in the future.
The applicant said that he still wants to live with his wife in the future and they only broke up one year ago. The Tribunal notes that his evidence was inconsistent. At the beginning of the hearing he said that they have separated and he did not know where his wife was. The applicant said his parents in India received a threatening call from his ex-wife’s family telling him his life was in danger. The applicant maintained that although he was currently separated from his wife he still wanted to be with her. The applicant said his wife’s family want to kill him because he has ruined her life.
The Tribunal noted that he is [an age] year old independent male who left India in 2008 and has been [living] in Australia. The Tribunal asked the applicant why he would have anything to do with his ex-wife’s family. The applicant said that things may be ok in the future but he does not want to go back to India for the time being.
The Tribunal asked the applicant on what basis he thinks that his wife’s parents will want to kill him. The applicant said that his family were told that some people would try to kill him. The Tribunal again asked the applicant if he could be more specific about what people he feared would kill him. The applicant said the Hindu community no longer want to kill him because he has left his wife. He now fears his wife’s family who are DSS followers.
The Tribunal noted that he came from the majority Hindu religious group in India and his wife’s family were from a minority religious sect that historically has experienced persecution in India. The Tribunal asked the applicant why he could not seek the protection of the police in India. The applicant claimed that some members of the DSS work anonymously in secret and he could be attacked.
The Tribunal questioned the applicant about why he waited until May 2016 before he applied for the protection visa. The applicant said that he thought that once he applied for a [temporary] visa he would apply for [another] visa and be able to obtain permanent residence. The Tribunal noted that he was unsuccessful in his application for the [other] visa in October 2012. The applicant said that thought he could appeal the decision. The Tribunal told the applicant it appeared from his migration history that he only applied for the protection visa once he had exhausted all other migration options to remain in Australia.
Country Information
Country information indicates that Dera Sacha Sauda (DSS) is a spiritual and social movement founded in 1948 by Shehenshahji Mastana, a Sikh from Balochistan. The current leader of DSS is Gurmeet Ram Rahim Singh. While Singh has stated that the DSS movement is based on a “combination of all religions”, referred to by DSS followers as insaan, many Sikhs view DSS as a breakaway faction of Sikhism.[1]
[1] Alig, A. & Anwar, A. 2007, ‘Embers of a Sikh fire’, Himal South Asian, October <
The DSS does operate freely throughout India. Under the leadership of Gurmeet Ram Rahim Singh, the DSS has expanded its presence and services beyond the Sikh heartland of Punjab and Haryana, building ashrams and providing services in a number of states and cities across India.[2]
[2]Dera Sacha Sauda website n.d., Dera Sacha Sauda Ashrams Across India < Accessed 28 July 2011
The Economist reported that the DSS has grown from a single dera into a mass movement, with “some 400,000 followers”, drawing adherents from low caste members of the Sikh community, as well as Hindus.[3] BBC News states that the majority of DSS followers are Dalits (Untouchables/low-caste Hindus); however it has also attracted “Sikh, Muslim and Christian adherents”.[4] The DSS itself claims to have over forty million followers worldwide.[5]
[3] ‘Dangerous tensions in Punjab’ 2007, The Economist, 5 July < cfm?story_id=9444533
[4] ‘PM urges calm over Sikh protests’ 2007, BBC News, 18 May < Dera Sacha Sauda website 2010, About Us <
The DSS website outlines many of the core values and beliefs of the movement, such as “humanitarianism”, “selfless services”, rejection of dowries, “social evolution”, “eradicating social evils”, the provision of education to all, and the promotion of efficient organic farming.[6] The DSS claims to routinely perform “around 70 social welfare activities”. Some of the programs listed on the DSS website include: the operation of a home for leprosy patients; the provision of wheelchairs to the disabled; the provision of financial aid to poor patients; the operation of a blood bank; the provision of financial assistance to poor students; and the provision of free legal aid. Other ‘welfare activities’ include encouraging people to shun homosexuality; the ‘emancipation’ of prostitutes; the “promotion of vegetarianism”; and “helping young divorcee women getting married again”.[7]
[6] Dera Sacha Sauda 2010, About Us < Dera Sacha Sauda n.d., 70 Humanitarian Activities <>
As a consequence of its popularity among Punjab’s dalits and other scheduled castes, DSS Guru Gurmeet Ram Rahim Singh is routinely courted by leaders of the major political parties in Punjab, namely the Shiromani Akali Dal – Badal (SAD Badal), Indian National Congress (INC), and the Bharatiya Janata Party (BJP).[8]
[8] Garg, B 2012, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January <>
The most serious violence affecting DSS activists/groups occurred in 2007. In a now infamous act, DSS Guru Gurmeet Ram Rahim Singh appeared to imitate the revered tenth Sikh Guru, Guru Gobind Singh. Writing in The Hindustan, Gobind Thukral states that the guru’s “farcical manner” should have “provoked some wry humour”. However, the Sikh ruling elite saw a political opportunity to diminish the growing political power of the DSS guru and the dera:
…the political class saw in it an opportunity for consolidation of their respective political bases. Consequently, there were armed clashes that left scores of Dera followers and Sikhs injured and one young man dead. For the first three days, the police were mere spectators as sword and lathi-swinging mobs clashed in and around Bhatinda, the heart of Punjab’s prosperous Malwa. At the behest of the ruling Akali Dal and the Shiromani Gurdwara Prabandhak Committee (SGPC), the Sikh clerics occupying the five Takhts arbitrated, but their harshly-worded edicts only fuelled more hatred.[9]
[9] Thukral, G 2007, ‘Keep the faith’, The Hindustan Times, 18 June <>
Under the leadership of Gurmeet Ram Rahim Singh, the DSS has expanded its presence and services to a number of states and cities including Gujarat, Maharashtra, Himachal Pradesh, Madhya Pradesh, Chhattisgarh, Delhi and Chandigarh.[10] The DSS website lists some 44 ashrams across India.[11]
Findings
[10] Garg, B 2007, ‘Dera Sacha Sauda and Gurmeet Ram Rahim’, The Times of India, 18 May < Dera Sacha Sauda website n.d., Dera Sacha Sauda Ashrams Across India <>
The Tribunal finds that the applicant is a citizen of India who travelled to Australia on a validly issued Indian passport as a [temporary] visa holder. The applicant’s passport confirms he was married to [Ms A]. The Tribunal has assessed the applicant’s claims against India as his country of nationality and the receiving country for the purposes of s.36(2)(aa).
The Tribunal accepts that the applicant is a follower of the Hindu religion. The Tribunal accepts the applicant married [Ms A] in India in 2000 and travelled to Australia with his wife. The Tribunal accepts the applicant has [children] who have remained in India and live with his parents. The applicant has provided no independent evidence to support his claim that he has separated from his wife, the Tribunal notes however that she did not attend the hearing and is prepared to accept the applicant separated from his wife before he lodged the protection visa application in May 2016. According to the delegate’s decision, the children remain in the care of his parents which has been supported by a guardianship declaration provided in association with the applicant’s [temporary] visa application in 2008.
The Tribunal finds however that the applicant has provided vague and inconsistent information in support of his claims and does not accept that the applicant’s ex-wife and her family are followers of the DSS religion and/or Guru Ram Rahim. The Tribunal does not accept that the applicant has suffered harm in the past or will suffer harm in the future if he returns to India because:
·he has separated from his wife
·his ex-wife’s family want to kill him because he tried to convert his ex-wife to the Hindu religion and/or because he would not convert to the DSS religion
·members of the Hindu community want to kill him because he married someone from the DSS religion.

As detailed above, the Tribunal found the applicant’s evidence that his wife was a follower of Guru Ram Rahim and/or the DSS religion vague and inconsistent. The applicant did not provide any evidence to support his claim that his wife and her family were members of the DSS religion. His parents and family in India did not provide any statements in support of his claims. The Tribunal finds it difficult to accept that the applicant married his wife in 2000 and only became aware that she was a member of the DSS religion in about 2008 when she told him privately that she followed the DSS religion and asked him to convert. According to his original claim form he was accused of trying to convert his wife to the Hindu religion. At the hearing he claimed he had no personal problem with his wife following the DSS religion and did not try to convert her.
The Tribunal finds it concerning that throughout the hearing the applicant claimed that he feared he would be killed by members of the Hindu community because he was married to a DSS supporter and that was the main reason he fled to Australia.
When asked to explain what threats he received in India he was only able to refer to a telephone call. He could not provide evidence about what words were spoken during the call or when the call was made. He did not know the identity of the caller and speculated the caller was from the Hindu community because “only Hindu people would do this”. The Tribunal also finds the applicant’s claims that his parents received information that “some people” in India wanted to kill him vague and difficult to accept. The Tribunal finds the evidence about the threats in India vague and lacking in credibility. The Tribunal raised these concerns with the applicant at the hearing. Having considered the applicant’s evidence the Tribunal does not accept he received any threats in India or since he has arrived in Australia.
The Tribunal also finds it concerning that the applicant did not mention that he feared his wife’s family who were DSS supporters until prompted by the Tribunal at the hearing. The Tribunal finds that it was only when the Tribunal referred the applicant back to his original claims did the applicant state that he feared his wife’s family in India and changed his evidence.
The Tribunal has also had regard to the applicant’s migration history and finds it inconsistent that the applicant claims he had to escape from India in 2008 because he feared persecution but made no claim for protection until 2016 once he had exhausted all other options of remaining in Australia.
The Tribunal also finds it inconsistent that the applicant would claim he feared persecution in India but would return to India in October 2010 and May 2012. The Tribunal found the applicant’s claims that he did not face harm from his community when he returned to India because they thought he had separated from his wife unconvincing and inconsistent with his claim that he feared harm from DSS supporters.
The Tribunal has had regard to the applicant’s evidence and the country information and is not satisfied that there is a real chance that the applicant will face serious harm from his ex-wife’s family, members of the DSS religion and/or members of Hindu his community if he returns to India in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of harm because of his Hindu religious beliefs and/or because of his ex-wife’s DSS religion and/or because of his imputed political opinion as Hindu who is opposed to the DSS religion is not well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having rejected his claims that his ex-wife and her family are followers of the DSS religion the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that he will suffer significant harm.
As stated above the Tribunal accepts the applicant has separated from his wife since he has come to live in Australia and his children have remained with his parents in India. The Tribunal does not however accept that the applicant’s ex-wife’s family have threatened the applicant because they have separated. The applicant has provided no evidence to support this claim. There is no evidence of any custody proceedings relating to the children. As stated above the children have lived with his parents since 2008 before they separated.
Looking into the reasonably foreseeable future, are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that he will suffer significant harm because he has separated from his wife and their children live with his parents in India.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2017] AATA 1114

20 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice