1614039 (Refugee)

1614039 (Refugee) [2019] AATA 3960 (12 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614039
COUNTRY OF REFERENCE:                  India
MEMBER:Anne Grant
DATE:12 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2019 at 2:49pm

CATCHWORDS
REFUGEE – protection visa – India – race – religion – Sikh – inter-faith marriage – Muslim wife – honour killings – fears harm from Hindu nationalists and conservative Sikhs – vague, speculative threats – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 19 August 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 on 19 April 2016.
The applicant attended a hearing on 16 May 2019. He was accompanied by his wife who also gave evidence prior to him and then remained in the room at his request after she had given evidence. The applicant was represented by [name deleted] who also made submissions. The hearing was conducted in English.
For the reasons that follow, I have concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirm the delegate’s decision.
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.
Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
Under s.5J 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.
Section5J(2)-(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:
(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.
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’).
Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.
Applicant’s oral and written evidence
I have before me the Department’s file which includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision. The applicant has provided a copy of the delegate’s decision to the Tribunal with his application for review.
In his written claims, the applicant lists his nationality as Indian and his ethnicity and religion as Sikh.
The applicant states in relation to why he fears returning to India, that he is in a relationship with a Muslim woman and that ‘this created a lot of trouble for him in his society in his home country’. He claimed it is not possible to return to India with his partner or even alone now as they have a child born of the relationship. He claimed that if he returned to India, ‘they will not be accepted and may be killed or seriously beaten up for engaging himself with girl of Muslim religion.’ The applicant’s claim states that he has not gone back to India fearing that he may be seriously harmed in the name of ‘honour killing by society people’. He claimed the authorities have limitations to protect them and eventually they will be seriously harmed as they cannot be safe and protected at all times. The applicant said ‘that they will need to register their ID to find a place to live and the society people against their relationship can find and locate us anywhere they live using internet and technology.’
At hearing, the applicant reiterated the above claims. He confirmed that he is a Sikh but shaves and does not wear a turban. He used his passport photo to demonstrate that he had never dressed traditionally, even before he came to Australia. He confirmed that he had never been threatened with harm by any person either here or in India because of his relationship with his current Muslim wife. He confirmed also that his mother had visited Australia in late 2018 and likes both his wife and their child. She does not have any problem with his relationship. He is not as close to his father and [siblings] but none of them have expressed any concerns or threats relating to his relationship. He has regular contact with his family (particularly his mother). If he was to return to India, he would return to his family home and village, [Town 1], in Punjab. The family are farmers. The village has approximately 500 people and is one of six in a local cluster. He gave evidence that he does not fear rejection or harm from his family or any other specific persons in [Town 1].
The applicant stated at hearing that his reason for seeking protection is his professed fear that unknown more conservative Hindu or Sikh members of the community ‘might’ find out about the inter-faith marriage in the future and ‘may’ disapprove and ‘may’ beat him up when they find out. When pressed, he could not say who would do so, just that he was worried that it might happen in the future because there are reports of such things happening. The applicant agreed that inter-faith marriage is legal in India. He submitted that it is still strongly and sometimes violently disapproved of by strict religious types.
The applicant’s wife confirmed that they had married in 2016, via a civil service. She is from a Muslim family but does not wear a Hijab, and agreed that she could be described as a ‘non practising’ Muslim. She is an Australian citizen and was born here. Her family do not really approve of her marriage to the applicant and she has very little to do with them. She said that if the applicant had to return to India, she and their daughter would not go with him because she was afraid of what might happen if they did. She has never been to India and speaks no Indian language. She said that her mother in law did not threaten or abuse her while she was in Australia, and they got along reasonably well. However the applicant’s mother stayed with a family friend, and not with them, and they could not actually communicate very well, as the applicant’s mother speaks no English.
The applicant’s child [was] born in [date]. According to the applicant and his wife, the child’s birth certificate uses the applicant’s traditional family name as ‘[Family Name 1]’ and not [Family Name 2] or [Family Name 3]. The applicant and his wife submitted that the child’s first name is a recognisable Muslim name. The submission is that in India everyone would guess that the child has some Muslim heritage, which will alert them to the situation. If that occurs, the applicant submits ‘someone may take offence’ and target them. The applicant reiterated that he was fearful that somehow in the future someone opposed to Muslims and interfaith marriages would discover that his wife was a Muslim and that they may then be attacked. He could not be more specific about the perpetrators or his claims than that.
The applicant’s representative submitted that the history of Hindu/Muslim hatred has ancient historical roots and the two faiths are sworn enemies. He submitted that this fact alone, along with escalating Hindu nationalist actions in India make it ‘a certainty’ that people in the applicant’s situation will be vulnerable to being assaulted by conservative Hindu or Sikh community members. The representative’s submissions were premised on the applicant’s wife and daughter accompanying them to India, and based on the applicant’s wife and child drawing attention to his wife’s faith merely by their presence in the community.
Country information
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign affairs and Trade (DFAT) expressly for protection status determination purposes. I have had regard to the DFAT Country Information Report India (17 October 2018).
I have had regard to the following information from DFAT’s October 2018 report, which was discussed generally with the applicant at hearing:
Marriage (inter-faith, inter-caste)
3.42 India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. India has no centralised system for marriage registration. Some states require marriages to be registered by law. Couples may seek to marry under one of India’s personal religious laws, which have been codified according to the requirements of different religions. The Special Marriage Act (1954) is an alternative to each of the various religious personal laws. The Act is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act.
3.43 Arranged marriages continue to account for the overwhelming majority of marriages across India. Parents or other family members often assume sole responsibility for deciding whom their children marry, particularly in northern India. Many parents consider arranging a marriage for their children a right and a duty, and may not accept their son or daughter choosing their own spouse. Women face social pressure to marry by their mid-20s and men by their mid-30s. Around one in 1,000 marriages in India ends in divorce, compared with around one in three in Australia, although rates are increasing.
3.44 Hindu nationalists have increasingly used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. Activists and politicians, have used traditional and social media to propagate this idea, to threaten and warn Muslims away from marriage to Hindu women and to incite Hindu men to violence against Muslim men. DFAT has found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.
3.45 According to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses.
3.46 DFAT assesses that treatment of people in inter-religious or inter-caste marriages varies according to the families involved. In some cases the families of intending marriage partners may perpetrate violence against them.
CONSIDERATION AND FINDINGS
On the basis of the applicant’s passport presented at hearing and his evidence about his nationality, I am satisfied that the applicant is a national of India. Accordingly, India is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.
Does the applicant have a well-founded fear of persecution should he return to India?
A well-founded fear of persecution must involve serious harm. (s.5J(4)(b) of the Act. I informed the applicant at hearing that despite the delegate being satisfied that there was a real chance that the applicant will suffer serious harm (in the form of Honour killing) in his home area, on the information and evidence I had before me, I had concerns that the applicant had established that there was any such real chance, and that his claim to have a well-founded fear of persecution anywhere in India due to his marriage to a Muslim woman is very much in issue. In response, he submitted that he could not be more specific about his fear of harm but that he remained fearful that, if he returned to India, conservative members of his society ‘may’ or ‘might’ harm him some time in the future because of his marriage to a Muslim woman.
On the basis of the country information discussed during our hearing, I consider that it is plausible that in some instances in India, Hindu Nationalists may target and attack Muslim community members or persons involved in inter-faith relationships. However, as discussed with the applicant generally at hearing, I note that Punjab is not named in the country information as one of the States where violence targeting inter-faith marriages involving a Muslim partner is ‘more likely’ to occur, and that, in any event, the principal source of danger in such cases is said to be the opposed family members or close community of the persons involved. I also note that the applicant has not been ‘converted’ to the Muslim faith, (and did not claim to fear that he would be imputed to have done so) which is one of the factors mentioned as drawing the ire of Hindu Nationalists opposing what they term a ‘Love jihad’.
I do not accept the applicant’s representative’s submission that due to the ancient history of violent conflict between the Hindu and Muslim faiths, attacks on the applicant and potentially his wife and child are ‘a certainty’ at some point in the foreseeable future should they return to India.
The applicant’s fear of harm from unknown conservative community members, on his own evidence, is not based on any act of discrimination or threat he has ever experienced in his life. His evidence is that he never faced harm or the threat of harm (serious or not) from conservative Sikh community members even though he chose to shave and not to dress wearing the turban whilst he lived in India. He has not been threatened, discriminated against or abused (via phone, social media or any means) at any time by members of his family or any other person in his local or wider community from India since he commenced his relationship with his wife. The applicant’s evidence is that his parents have not experienced threats, discrimination or abuse because of his relationship, and based on that evidence, I find that they have not. The applicant in his evidence categorically ruled out any fear of harm from his own family if he returned to [Town 1], and indicated that if he returns to India, he would voluntarily return to his family home and would have the support of his family. I find, based on that evidence that the applicant does not fear harm from them on returning to his family home and village.
I have also considered the applicant’s claim to fear harm from ‘society people’, ‘Hindu nationalists’ or ‘conservative Sikhs’ in India. I find these claims to be vague and speculative. I have also considered his written claim that ‘society people’ against his relationship ‘could find and locate him’ anywhere using internet and technology. I do not accept that ‘society people’ are or would be interested in or against his relationship now or in the foreseeable future and I consequently do not accept that they would be looking for and would seek to or could locate and harm him ‘anywhere’ in India as he claims. I consider this claim to be vague, contingent and speculative.

Taking into account the applicant’s evidence about the support of his family, his experience living in the community prior to coming to Australia, the vague and speculative nature of the threats he claims to face, and his circumstances as a whole, I do not accept that there is a real chance that, if he returns on his own to India, the applicant will face serious harm (in the form of being killed, significantly harassed, physically assaulted or threatened) from members of his local community or his family because of his having married a Muslim woman and having a child with her.
The applicant’s wife and child are Australian citizens, and based on his wife’s evidence, which I accept, I do not consider that they would travel to India with him if he was required to return. However for completeness, (and given that it was put by his representative on the basis that it would be likely) I have also considered whether there would be a real chance that the applicant will face persecution in India in the event that they were to decide to travel to India with him. The applicant’s wife is (according to her own evidence) a ‘non practising’ Muslim who does not wear the external evidence of her faith (such as a Hijab). Her daughter has a Muslim first name but also bears her father’s surname. The applicant’s evidence is that he is close to his mother and she is very fond of her grandchild and likes his wife. The applicant confirmed that he was not from a conservative Sikh family, as evidenced by his choice to shave and not to wear a turban prior to coming to Australia. He confirmed that he had never faced any form of discrimination, abuse or harm due to his choice not to wear a turban and to shave. He agreed that it was common in India for young Sikh persons to shave and not to wear the turban and that would usually not cause any reason for harm unless they encountered resistance and opposition from their families. He submitted, however, that nonetheless some of his friends in India are aware that his wife is a Muslim and it is possible that someone ‘could be racist’ to him. The applicant’s evidence is that this has not occurred at any stage prior to the hearing via social media or otherwise. I have also taken into account that the evidence is that his wife would be living in his Sikh family home and does not dress as a traditional Muslim, so her appearance would not necessarily draw attention to her as a Muslim woman.
Based on the country information about the generally conservative nature of small communities in India, I accept that it is possible that someone at some point in his local community may discover and disapprove of his inter-faith marriage. Based on his evidence and his experiences, I do not accept that there is a real chance that, in that event, he will experience more than some minor social disapproval. I find that such disapproval would be low level only and would not amount to ‘serious harm’. I do not accept that it automatically follows, as the applicant and his representative submitted, that the applicant and his wife will ‘undoubtedly’ or ‘certainly’ suffer serious harm as a consequence of that disapproval. In reaching that conclusion, I note that Punjab is not named as one of the areas in the country information where Hindu nationalists are reported to be violently active in such matters. I also note that the applicant’s parents are supportive of him, and he is not aware of any local opposition to his marital situation. He has not experienced harm of any kind from local conservatives prior to leaving India even though he never adopted conservative dress. Based on the information and evidence before me, I do not accept that the applicant, his wife and child would face serious harm (or persecution) from conservative community members because of their inter-faith marriage or for any other reason if they were to return to India.
Taking into consideration the evidence as a whole and based on his evidence about his past experience of having suffered no discrimination, harm or difficulties from conservatives in his local community whilst dressing without the Sikh faith symbols, and about his good relationship with his family and their lack of concern over his choice of wife, I do not accept that there is a real chance that he would be the victim of an ‘honour killing’ by members of his family or his local community in his home town or anywhere in India, whether or not his wife and child accompany him to India.
I accept that the applicant would, if it were his choice, choose to stay in Australia because he would prefer to do so and to remain with his wife and child. However I am not satisfied that the applicant has a well-founded fear of persecution on his return to India by reason of his marriage to a Muslim woman or his having a child with a Muslim woman, or for any other reason (including his choice not to follow Sikh dress and grooming traditions).
I have considered the applicant’s claims both individually and cumulatively but I am not satisfied that the applicant faces a real chance of persecution for any reason if he returns to India.
Consequently I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
I have turned to consider whether the applicant meets the criteria in s.36(2)(aa). In doing so, I must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to India, there is a real risk that the applicant will suffer significant harm.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
I refer to and rely on my findings above in relation to the applicant’s claims. For those same reasons, I do not accept that the applicant faces a real risk of being killed, assaulted or significantly harassed as a necessary and foreseeable consequence of being removed from Australia to India due to his having married a Muslim woman and had a child with her, or for any other reason, whether or not his wife and child travel to India with him.
The applicant said he would prefer not to be separated from his wife and child and would like to keep his family together. Though he did not claim it, I acknowledge and have considered that, in the event that he returns to India without his family, that separation will potentially cause him some emotional anxiety and distress.
I also note that I have found that there is some risk that he might face some disapproval at some point from conservative members of Indian society.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). 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. ‘Cruel or inhuman treatment or punishment’; ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.
I am not satisfied that the potential harm the applicant may suffer as a necessary and foreseeable consequence of him being removed from Australia (namely emotional anxiety and distress and some societal disapproval) constitute ‘significant harm’ as defined for the purposes of considering s.36(2)(aa), whether considered individually or cumulatively.
On the evidence and information before me, I therefore conclude that there are not substantial grounds (or any grounds) for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed to India.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am 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.
Anne Grant
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.
(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 3960

12 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction