1614108 (Refugee)

1614108 (Refugee) [2020] AATA 1542 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614108
COUNTRY OF REFERENCE:                   India
MEMBER:Hugh Sanderson
DATE:21 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 February 2020 at 11:13am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member or supporter of political party – attacks, threats and forced donations to another party – credibility – vague, implausible and inconsistent evidence – no evidence of party membership or activity – lengthy residence in another part of the country without harm – visas for other countries without travelling – delay in departure after Australian visa granted – no harm to remaining family members – country information – low levels of political violence – relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 18 February 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants would be persecuted or faced a real risk of suffering significant harm if they returned to India.
Background
The first named applicant (hereinafter the applicant) was born in India and is currently [Age 1] years old. He is married to the second named visa applicant who was born in India and is currently [Age 2] years old. They have three [children], all who continue to reside in India.
The applicant and his wife arrived in Australia [in] December 2015 holding visitor visas. They applied for the protection visa prior to their visas expiring. The claims made in support of the protection visa application have been done so on behalf of the applicant. His wife has applied for the visa on the basis of being a member of his family unit.
The applicant claimed that he was an active member of the Congress Party. He said that he believed that when BJP won the election, corrupt money flowed easily into their hands and some was used illegally for every aspect of daily life. He claimed his business partner was a BJP supporter and BJP members always forced them to donate to the party. This put them in real financial hardship and when he refused to give donations, members of the BJP threatened to kill him.
The applicant claimed that during election time he campaigned for the Congress Party and became well known to senior BJP leaders as they knew his activities were putting their political objectives in real danger. He claimed that he was beaten and threatened with death and that further attacks on him and his family would continue unabated. The continuing violence and attacks on him prompted him to leave India.
The applicant claimed that he went to the police about the assault but they would not take any action as they were told not to do so by their superiors. He claimed not to be able to move to any other area of India as BJP members are all over the country. He claimed that since he left India, BJP members have visited his home and are looking for him constantly.
The delegate who considered the application noted the following:
·Although the applicant claimed he had been beaten and threatened with death, the applicant provided no details with regards to these allegations;
·The applicant provided no information indicating members of the Congress Party had suffered any persecution or harassment;
·The applicant provided no documentation to show that he has ever been a member of the Congress Party; and
·There is no evidence that the person who allegedly assaulted him would have any interest in the applicant if he relocated to Delhi.
Taking the above into account, the delegate was not satisfied the applicant would face any persecution or faced any real risk of suffering significant harm if he were required to return to India. Accordingly the delegate found the applicant did not meet criteria for the grant of the visa. As the applicant’s wife is not a member of the family unit of a person who met the primary criteria, her application was refused.
Information to the Tribunal
The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
The applicant said that his children were currently living in his home in India with his parents. He said that they would move between his home with his parents and the home of his wife. He said they all go to school. He said that he speaks to his children regularly by phone.
The applicant said that his parents have to remain in hiding. The Tribunal asked why they were in hiding and the applicant said that in April 2018 his uncle’s son committed suicide. He said that he has been told that “they” are looking for him. He said that he received a secret telephone call from his parents saying that “they” are making enquiries about him.
The Tribunal asked the applicant to provide greater details of who he claims is threatening him. The applicant became confused in providing these details. He said that he had a partner and that while the applicant was a supporter of Congress, his partner was in the BJP. He said that he was never a member of Congress and was in no position of authority or had any role in Congress, but he would help them canvassing. He said that this just involves helping in elections.
The applicant said that his partner supported BJP and they had arguments. He said that he would give money from the company to BJP and then tell the applicant about it. He said that he had fights and arguments with him. He claimed that his partner was influential with BJP.
The applicant claimed that BJP supporters threatened and assaulted him. The Tribunal asked the applicant to provide details of this. He claimed that it happened in a [venue]. He claimed that [four] or five people came to him and asked him why he canvassed for Congress. He said that he was comfortable with Congress. He then said that they assaulted him. The Tribunal attempted to have the applicant provide details of the assault. The most the applicant said was that they grabbed him by his collar and beat him. The applicant said that after the beating, he went to the police and had bandages put on his [Body part 1]. He said he then went to the hospital for treatment.
The applicant said that he had no information from the hospital as he was not admitted to the hospital. He said that when he went to the police they refused to take any complaint for him. He said that he went to the hospital after the police. He said that he went to the police first and they could see the blood on his [Body part 2]. The Tribunal noted that he had previously claimed to have injured his [Body part 1]. He said that it was both his [Body part 1] and his [Body part 2] that was injured. He said that he went to the police on three occasions but they refused to take any notes or make a First Instance Complaint report.
The Tribunal asked the applicant to provide details of the occasions that he went to the police. He said that it was after he was threatened. He could not provide any details of when the threats were made or the complaints he made to the police. He said that his brain was not working. He said that he could not remember when the threats were made. He said that it was between 2013 and 2015. He said that he made two complaints to the police in 2015 and one police complaint in 2014. He said that he was so scared for his safety that he left India for Australia overnight.
The applicant said that he got visas for [Country 1] and [Country 2]. The Tribunal noted that in his passport it showed that he and his wife were granted visas to attend [Country 1] in December 2014 and [Country 2] in January 2015. If the applicant was living in fear of his safety, it seems strange that he did not at that time depart India for [Country 1] or [Country 2]. The applicant said that he could not leave because they were following him everywhere. The Tribunal indicated that if he was able to apply for visas, including a visa to Australia, and then make arrangements to leave India for Australia, it was not plausible that he would not be able to depart India to go to [Country 1] or [Country 2] when he held visas to enter those countries. The applicant said that his mind was not working in India and he was crazy.
The Tribunal asked the applicant about the business he claimed to be operating with his partner in India. He said that he did not have any information as to the business as he had no contact with the business. He said that he was only a friend of the business owner and he made some investments in the business. He confirmed that his friend was the supporter of the BJP. He said that he invested between Rs[Amount 1] and Rs[Amount 2] (less than AUD[Amount 3]). The Tribunal indicated this was not much money. The applicant said that he never worked for the business and had no idea about what the business did.
The applicant said that he lived and worked for about 8 or 10 years in Mumbai. He said that he was working as [an Occupation 1]. He said that he did not have any problems living there.
The Tribunal listed a number of concerns it had with respect of the applicant’s claim. This included the following:
·There were millions of people in India who were supporters of Congress and yet they were not targeted by the BJP or any other group for any reason;
·The applicant was not a member of Congress and was not involved in political action apart from claiming to canvass for them and as such would not be targeted for any reason as to his political belief;
·The claims made by the applicant have been vague and general and he has not been able to provide any details of any alleged assault or threats made against him;
·The applicant provided inconsistent information as to the claimed assault, including claiming originally that he went to the hospital and injured his [Body part 1] and then to the police, but then claimed that he went to the police first with an injured [Body part 2] and then went to the hospital;
·There is no information his family in India have suffered any harm since the applicant and his wife arrived in Australia;
·The country information indicates that in the last election there was limited violence and that the violence that did happen occurred in West Bengal and not in Gujarat; and
·That the applicant was able to live for 8 or 10 years in Mumbai which would indicate that the applicant would be able to relocate in India to Mumbai or Delhi if he feared any harm in Gujarat.
After being asked to comment on these issues, the applicant responded by saying that he went to the police first so that they could see the blood and do something. He said that he had bandages on his [Body part 2] and his [Body part 1].
The applicant asked for more time to provide documents in support of the application. After the hearing the applicant provided a death certificate for [A] who died [in] April 2018 and [B] who died [in] September 2019. No information was provided in the death certificates as to the cause of death or any other relevant information.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that India is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that India is the receiving country.
The Tribunal does not accept the claims made by the applicant. The Tribunal does not accept that he has been involved with the Congress Party. The Tribunal does not accept that due to the applicant’s political opinion he was assaulted or threatened by members or the supporters of the BJP or any other group. The Tribunal does not accept that he was required to make donations to the BJP. The Tribunal does not accept that if the applicant returns to India he faces any threat from members or supporters of BJP or any other group in India. The Tribunal does not accept the applicant has a well-founded fear of persecution in India or that there is a real risk the applicant will suffer significant harm in India.
Apart from his statements, the applicant has provided little information to support the claims he has made. He has not provided any evidence that he was ever admitted to hospital, that he made any complaint to the police, that the business that he claimed to have been a director of, [Business name], was forced to make donations to the BJP, that he was ever a director of [Business name] or that he was ever an “active member” of the Congress Party.
The applicant was invited to provide further documents to support his claims and given further time to provide documents after the hearing. The only documents he provided were two death certificates from relatives. The death certificates do not support any of the claims that have been made by the applicant. They do not indicate the cause of death or any information which would support the claims of the applicant. The Tribunal accepts that relatives of the applicant died in 2019 and 2020, however, this does not support in any way the claims made by the applicant.
The applicant has provided inconsistent information in respect of his claims. In the statement he provided in support of his application, he claimed that he “was an active member of Congress Party”. As indicated above, he provided no documentation which would indicate he was ever a member of the Congress Party or that he was involved in any of the activities of the Congress Party. Before the Tribunal, however, the applicant said that he was never a member of the Congress Party. He said that he was in no position of authority and did not have any role within the Congress Party. He did not claim that he had a profile within the Congress Party which would have made him a target for any opponents of that party. He said that he was merely a supporter of the Congress Party and would help them canvassing during elections.
There is a significant difference between being an active member of a party and merely a supporter of the party who sometimes helps them canvassing during elections. The Tribunal does not accept that the applicant would confuse the difference between being a member of a political party and a supporter of that party who sometimes helps during elections. The fact that the applicant provided inconsistent information undermines the claims that he has made about being targeted by opponents of the Congress Party and why they would target him for his political opinion.
The applicant claimed that he was a director of [Business name]. He provided no documentation to support this claim. He claimed that his business partner was a BJP supporter and that BJP members forced them to give “donation” to the BJP. He claimed that this put them in real financial hardship. The applicant’s claim as to his involvement with [Business name] before the Tribunal was inconsistent to this information. The applicant said that he did not have any information about the business as he had no contact with the business. He said that it was his friend who was the owner of the business and he had only made an investment in that business of between Rs[Amount 1] and Rs[Amount 2]. This would be less than AUD[Amount]. When the Tribunal pointed out to the applicant that this was only a small amount of money, the applicant responded by saying that he had no idea what the business was.
The Tribunal does not accept that if the basis of the applicant’s claim is that he was threatened by BJP members due to his objection to [Business name] making donations to them, this would have occurred if the applicant has no knowledge of the business activities of [Business name] and was not involved in the business activities of that business at all. The Tribunal does not accept that if the applicant’s only interest in the business was, as he claimed, an investment of less than AUD[Amount], he would have had any role in determining the financial activities of that business or any decision to make a donation to any political party. The inconsistency in the information provided by the applicant as to his involvement in [Business name] leads the Tribunal to conclude that the applicant had no involvement in this business and that the claims that he faced persecution or that he would suffer significant harm arising as a result of his interest in the business are not credible.

The applicant provided vague and inconsistent information as to the alleged threats and assaults that he suffered in India. When the Tribunal raised a concern that he was unable to provide any clear details of the alleged threats and assaults, the applicant claimed that “his brain was not working”. The Tribunal does not accept that if the alleged assaults and threats were made to the applicant, he would not be able to provide clearer information to the Tribunal about those events. The information he did provide to the Tribunal about an assault and a complaint he made to the police was inconsistent, first claiming that he only injured his [Body part 1] when he went to the police and then claiming that he had an injury to his [Body part 2].
The applicant also provided an implausible account as to the events after the assault occurred. He claimed that after the assault he went to the police and had bandages put on his [Body part 1]. He claimed that he was so injured that he was required to go to hospital, but he went to the police first so that they could see the blood on his [Body part 2]. The Tribunal does not accept that if the applicant was so injured that he was required to attend a hospital that he would not have attended the hospital first to receive treatment rather than go to the police so that they could see the blood on his [Body part 2]. If the assault had occurred and he was required to attend a hospital for treatment, simply the fact that he received treatment from the hospital would have been sufficient to establish that he had been assaulted. It is noted that the applicant provided no information from his claimed attendance at the hospital to receive treatment for any claimed injuries. The fact that the applicant claimed that he was so injured that he was required to attend a hospital but then claimed that he went to the police first so they could see the blood on his [Body part 2] again undermines the credibility of the claims being made by the applicant.
The applicant claimed that he was so scared for his safety that he and his wife left India for Australia overnight. The applicant and his wife were granted the Australian visitor visas [in] October 2015. They did not leave India until [December] 2015. The applicant’s and his wife’s passports show that they had previously been granted a visa to enter [Country 2] [in] January 2015 which did not expire until [January] 2025. They had also been granted a visa to enter [Country 1] valid from [December] 2014 to [June] 2015. Although the applicant provided inconsistent and confused information as to when the claimed threats and assaults occurred, he indicated to the Tribunal that the assaults occurred between 2013 and 2015. He claimed that he attempted to make complaints to the police in 2014 and 2015. It is over the period that the applicant held these visas to be able to travel to [Country 1] and [Country 2] that these alleged incidents happen.
The Tribunal does not accept that if the applicant had the opportunity to travel to [Country 1] and [Country 2] if he was facing persecution and feared harm as he now claims that he would not have used the opportunity to depart India. That he did not travel to those countries and then seek protection in those countries undermines the claims that he is making that he faces any real risk of significant harm or has a well-founded fear of persecution in India.
The applicant claimed that he did not leave India to travel to [Country 1] or [Country 2] on these visas as he was being followed everywhere. The Tribunal does not accept this. There is no reason why anyone would want to follow the applicant for any of the claims that he has made. The applicant has not previously made this claim. The applicant does not indicate that he was not able to continue to work and live in India over this period. After obtaining the visa from [Country 1], he was subsequently able to apply and arrange for visas to [Country 2] and Australia. The Tribunal does not accept that if he was able to travel to Australia when he did that he would not have been able to make arrangements to depart India to travel to [Country 1] or to [Country 2] earlier if he did genuinely believe there was a real risk that he would suffer significant harm or that he had a well-founded fear of persecution. That he did not depart India to either [Country 2] or [Country 1] further undermines the credibility of the claims that he has made.
The applicant claimed that his parents have remained in hiding in India. He claimed that this was because his uncle’s son committed suicide. The applicant provided two death certificates for people who died [in] April 2018 and [in] September 2019. The Tribunal accepts that these people are relatives of the applicant, but the fact that these relatives have died does not support in any way the claims made by the applicant. There is no information that the applicant’s relatives died as a result of any assault or any reason associated with the claims he has made. The applicant claimed that his nephew committed suicide. There is no information as to why he committed suicide.
The applicant has provided no information which would support his claim that his parents have been in hiding. He claims his children move between his parents’ home and his wife’s parents’ home. This indicates that his parents have not moved from the applicant’s home and so are not in hiding. The fact that his children are attending school indicates that they are not in hiding and are able to maintain their normal daily routine. Although he claims that his parents have told him that “they” are looking for him, there is no information to support this allegation. There is no reason if the applicant has not been in India since his arrival in Australia in 2015 that anybody would be looking for him for any reason.
The Tribunal does not accept that any of the applicant’s family or his wife’s family in India have been threatened in any way or that they are in hiding for any reason. The Tribunal does not accept that his family have indicated to the applicant that there is any threat from any person or organisation in India which would mean that there was a real risk the applicant would suffer significant harm in India or that would mean he has a well-founded fear of persecution in India.
Country information
The Tribunal has considered the independent information and the current state of political activity in India.
The Department of Foreign Affairs and Trade Country Information Report on India dated 17 October 2018 describes India as having “a diverse political landscape, which represents different ethnic, religious, secular and political interests”.[1] The report notes that there are a few publicly available statistics on election incidents although reports of violence around polling stations do occur during electoral periods. The report assessed “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”.[2]
[1] DFAT Country Information Report – India at paragraph 3.21.
[2] DFAT Country Information Report – India at paragraph 3.23 and 3.25.
In respect of the most recent election in May 2019, the New York Times on 23 May 2019 reported as follows:
About 600 million people voted, with more than 8000 candidates contesting seats in the Parliament.
The elections were mostly peaceful, though there were a few sporadic clashes between supporters of rival parties. At least one person was killed.
But this was far less violent than during the 2014 elections, when 16 election officials were killed and more than 2000 people were injured in poll related violence, according to an analysis by India Today.
The turnout was a record high, at 67.1 percent.
And despite strong passions, gargantuan numbers and a high-stakes, the elections have nearly concluded with no major allegations of fraud or rigging. Most of the voting was done on electronic voting machines that seem to work just fine, according to observers and election officials.[3]
[3]
The report referred to by the New York Times in India Today is dated 22 May 2019.[4] This report centres on political violence in West Bengal noting the state had the highest number of politically reported deaths and poll-related violence.
[4]
The country information does not support the claim that the applicant, if he was an ordinary supporter of the Congress Party in Gujarat, would be targeted by the BJP or any other political group for any canvassing during elections for the Congress Party. As indicated above, the applicant previously claimed that he was “an active member of Congress Party” but he has provided no information in support of that claim and did not pursue that claim when asked about his activities within the Congress Party by the Tribunal. The Tribunal is not satisfied that any profile the applicant may have as a supporter of the Congress Party would lead to any well-founded fear of persecution or real risk that he would suffer significant harm.
Relocation
The claims the applicant has made have been that he has faced threats and been assaulted in his home town and state of Gujarat due to his support of the Congress Party and his opposition to the BJP. The Tribunal has considered whether it is possible that the applicant would be able to relocate to any other area in India.
The Indian Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India with certain limitations.[5] India has a population of about 1.3 billion people with several significant cities with a mix of people from different areas of India. India is a multi-lingual and multi-ethnic nation. Many of those major cities, such as Mumbai and New Delhi, have large populations of people who have migrated to the area from other areas of India.
[5] DFAT Country Information Report – India at paragraph 5.14.
The applicant has stated that he speaks, reads and writes Gujarati and Hindi. He stated that he also was able to read and write English and, on the Tribunal’s observation, had a basic understanding and capacity to speak in English. The fact that he speaks three different languages would enable the applicant greater flexibility in relocating within India, particularly to New Delhi where the most popular language is Hindi. The applicant stated to the Tribunal that he was living and working in Mumbai for about 8 or 10 years. He did not report any problems while he was living and working in Mumbai.
The issue of the applicant relocating to Mumbai was raised by the Tribunal during the hearing. The applicant did not raise any reason why he would not be able to return to live to Mumbai with his wife. There are other significant cities in India, such as New Delhi, which the applicant would be able to have direct access to and he would be able to relocate without any significant difficulty. There is no information that if the applicant was facing any difficulties in his home state of Gujarat, which the Tribunal does not accept, that he would continue to face any difficulties in Mumbai or New Delhi or anywhere else outside the state of Gujarat.
Overall assessment
For the reasons set out above, the Tribunal does not accept the claims made by the applicant. The Tribunal does not accept the applicant was an active member of the Congress Party. The Tribunal does not accept that based on any allegiance or support the applicant showed to the Congress Party that the BJP or any other political organisation threatened or assaulted him or for any reason. The Tribunal does not accept the applicant was ever assaulted or that he made any complaint to the police about any such assault which the police did not act on. The Tribunal does not accept that the applicant has a profile which would bring him to the attention of BJP members or any leaders of the BJP. The Tribunal does not accept that the applicant was involved in the business, [or] that any business he was involved with was the subject of demands from the BJP or any other political party or organisation to force that business to give donations to the BJP or any other political party or organisation.
Even if the Tribunal were to accept the claims made by the applicant, the Tribunal does not accept that any of his claims indicate that he would have a well-founded fear of persecution or that there would be a real risk that he would suffer significant harm outside the state of Gujarat. The Tribunal finds that the applicant would be able to relocate to Mumbai or to New Delhi and would be able to reside in those areas without any fear of persecution or real risk that he would suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that either 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.
Hugh Sanderson
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:   For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 1542

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice